The Uniform Superior Court Rules use the phrase “similar transactions or occurrences,” but that phrase is “really too narrow for the type of evidence that may be admissible.” See Barrett v. State, 263 Ga. 533 n. 2, 436 S.E.2d 480 (1993), overruled in part on other grounds by Wall v. State, 269 Ga. 506, 508–509, 500 S.E.2d 904 (1998). As Professor Milich has pointed out in his treatise on Georgia evidence law, the phrase “similar transactions” is misleading for two reasons: (1) it is too narrow, because not all independent crimes, wrongs, or acts admissible under Rule 31.3 need to be similar to the charged crime; and (2) it “misleadingly suggests that similarity between the independent act and subject crime, by itself, is sufficient to admit the other act.” Milich § 11:10.

[W]ithout some sort of probative connection between the prior act and the crime charged, the prejudicial nature of the prior act evidence will outweigh its probative value." Barrett v. State, 263 Ga. 533, 534 (2) ( 436 S.E.2d 480) (1993); Larkins v. State, 230 Ga. 418, 420-421 (2) ( 197 S.E.2d 367) (1973), overruled on other grounds, Hunt v. State, 233 Ga. 329, 331 ( 211 S.E.2d 288) (1974). However, a trial court's finding that "other transactions" evidence is relevant necessarily constitutes an implicit finding that the probative value of that evidence outweighs its prejudicial impact.

Compliance with USCR 31.1 and 31.3 for all prior acts involving the accused and the victim is mandatory, but non-compliance will be excused as harmless error if the evidence against the accused is overwhelming. Barrett v. State, 263 Ga. 533, 535 ( 436 S.E.2d 480) (1993). In light of the circumstantial nature of the evidence adduced against appellant, as well as the testimony of the investigating officer that he continued to suspect as the killer the witness who was the last person to admit being with the victim, it cannot be said that the evidence against appellant was overwhelming.

1. Defendant first enumerates the admission into evidence the circumstances of his earlier arrest. He argues that the trial court erroneously interpreted Kirkland v. State, 206 Ga. App. 27, 28 (3) ( 424 S.E.2d 638) to stand for the proposition that "a DUI in any case is similar to another DUI," whereas the true test of admissibility for extrinsic crimes evidence is that enunciated by the Georgia Supreme Court in Barrett v. State, 263 Ga. 533 (2) ( 436 S.E.2d 480). Barrett v. State, supra, is a murder case and does not directly bear on the precise evidentiary point under review in this case.

Thus, former USCR 31.3 (A)-(D) addressed how evidence of independent acts extrinsic to the charge at issue might be admitted at trial for purposes recognized under Georgia's old Evidence Code; their purpose was to aid the trial court in preventing improper evidence that might prejudice the defendant from being placed before the fact finder. Barrett v. State , 263 Ga. 533, 535 (2), 436 S.E.2d 480 (1993), reversed on other grounds, Wall v. State , 269 Ga. 506, 508–509 (2), 500 S.E.2d 904 (1998). See also Peoples , supra.

Also the index to exhibits indicates that the videotape was retained by the court reporter. Barrett v. State, 263 Ga. 533, 535(3), 436 S.E.2d 480 (1993), overruled on other grounds, Wall v. State, 269 Ga. 506, 508-509(2), 500 S.E.2d 904 (1998); Jarvis v. State, 253 Ga.App. 581, 582(1), 560 S.E.2d 29 (2002). At the hearing on the motion to suppress, the detective was unable to confirm from his memory the exact comments about which Clark now complains on appeal.

Cavender v. State, 208 Ga. App. 61, 62 (2), 63 ( 429 S.E.2d 711). See also Barrett v. State, 263 Ga. 533 (2), 535 ( 436 S.E.2d 480). In the case sub judice, the State presented the victim's direct evidence as well as circumstantial evidence of defendant's guilt as related by adults pursuant to OCGA § 24-3-16.

See also Todd v. State, 261 Ga. 766 (7) ( 410 S.E.2d 725) (1991). Even if the other crimes are deemed to be independent offenses, they are admissible under an exception to the rule against inadmissibility when they are, as here, mutually dependent crimes (Barrett v. State, 263 Ga. 533 (2) ( 436 S.E.2d 480) (1993), overruled on other grounds in Waller v. State, 269 Ga. 506 ( 500 S.E.2d 904) (1998)), or, as stated in Division 1, are evidence establishing the criminal intent necessary to make appellant a party to the crimes. Grace v. State, supra, 262 Ga. 746 (4).

(Majority opinion, p. 8) Where, as here, a jury returns a verdict of guilt of the alternative counts of malice murder and felony murder of a single victim, and the trial court properly enters judgment on the malice murder verdict alone, the language in this Court's decisions regarding the status of the felony murder verdict has not been wholly consistent. Some cases indicate that the felony murder "count" or "charge" stands vacated by operation of OCGA § 16-1-7 (a). Goforth v. State, 271 Ga. 700 ( 523 S.E.2d 868) (1999); Bowden v. State, 270 Ga. 19, fn. 1 ( 504 S.E.2d 699) (1998); Rushin v. State, 269 Ga. 599, fn. 1 ( 502 S.E.2d 454) (1998);Tiller v. State, 267 Ga. 888, 890 (2) ( 485 S.E.2d 720) (1997);Barrett v. State, 263 Ga. 533, 536 (5) ( 436 S.E.2d 480) (1993), overruled on other grounds, Wall v. State, 269 Ga. 506, 508, 509 (2) ( 500 S.E.2d 904) (1998). In other cases, we have held that the felony murder "verdict" was vacated by operation of law.

Williams v. State, 262 Ga. 422, 424(6) ( 420 S.E.2d 301) (1992).Barrett v. State, 263 Ga. 533, 535(2) ( 436 S.E.2d 480) (1993); Johnson v. State, 238 Ga. 59 ( 230 S.E.2d 869) (1976). 6.