See Gaston v. State, 257 Ga. App. 480, 485 (4) ( 571 SE2d 477) (2002). Compare Morris v. State, 212 Ga. App. 779 ( 442 SE2d 792) (1994) (court held prior crime not sufficiently similar where it was too remote in time; involving completely different controlled substances, valium versus marijuana and amphetamines; and the defendant had constructive possession of drugs in the first instance and actual possession in the second). 2.
We disagree. In support of his argument, he relies on Morris v. State, 212 Ga. App. 779 ( 442 S.E.2d 792) (1994), which is physical precedent only. There, the majority concluded that it was error to admit the defendant's prior conviction where it did not involve the same controlled substance as the instant offense and the defendant was only in constructive possession of the substance in the prior case.
Court of Appeals Rule 33 (a). Thus, Belt did not and could not implicitly overrule Howard, 215 Ga. App. at 344 (2), or the long line of cases applying harmless error analysis to similar transaction issues. Id.; see, e.g., Jones v. State, 226 Ga. App. 721, 724 (1) ( 487 S.E.2d 618) (1997); Tam v. State, 225 Ga. App. 101, 102-103 (2) ( 483 S.E.2d 142) (1997); Morris v. State, 212 Ga. App. 779, 780 (1) ( 442 S.E.2d 792) (1994); Higginbotham v. State, 207 Ga. App. 424, 427 (4) ( 428 S.E.2d 592) (1993); Little v. State, 202 Ga. App. 7, 8 (1) ( 413 S.E.2d 496) (1991). Even more perplexing, the majority ignores Supreme Court authority applying harmless analysis to similar transaction issues. Stephens, 261 Ga. at 469 (6); see Ragan v. State, 264 Ga. 190, 192 (3) ( 442 S.E.2d 750) (1994).
Here, the trial court should have charged the jurors that Prickett is not on trial for the prior acts, that the limited purpose claimed by the state for introducing such evidence is only to show his state of mind and lustful disposition, that before considering the prior acts for this purpose they should determine if Prickett actually committed those acts, and if so, whether those acts are similar enough to the current rape charges so that Prickett's commission of the prior acts tends to illustrate his state of mind in this case. See Rice v. State, 217 Ga. App. 456, 458 (2) ( 458 S.E.2d 368) (1995); Morris v. State, 212 Ga. App. 779, 780 (2) ( 442 S.E.2d 792) (1994); Adams, supra at 36 (3) (e). The court's harmful error in not giving these necessary prior transaction charges compounded the harm of the improper admission of the prior acts evidence and mandates a reversal of Prickett's conviction.
The court's ruling, at the pretrial hearing, on the limited purpose or purposes for which it would be admissible is not of much consequence in terms of what he told the factfinder and how the factfinder used it. The jury should be more clearly instructed so there is no doubt of the strict limitations on the use of this powerful evidence, and the use should be confined to purposes articulated by the State, which must show that the purpose relates to a real issue in the particular case and that this evidence tends to support the State's theory on that issue. See Morris v. State, 212 Ga. App. 779 ( 442 S.E.2d 792) (1994) (Beasley, P. J., concurring specially); Harris v. State, 216 Ga. App. 672 ( 455 S.E.2d 387) (1995) (Beasley, C.J., concurring specially). In this instance, I do not conclude that the court's charge was reversible error.
2. Although I agree with the majority's conclusion in Division 3 that evidence of Jackson's prior conviction was properly admitted as a similar transaction, I believe that Jackson is entitled to an explanation distinguishing his case from Morris v. State, 212 Ga. App. 779 ( 442 S.E.2d 792) (1994), upon which he relies heavily. In Morris, we reversed a conviction for possession of diazepam and held that similar transaction evidence was improperly admitted.
[Cit.]" Morris v. State, 212 Ga. App. 779, 780 (1) ( 442 S.E.2d 792) (1994). The trial court admitted the prior conviction to show course of conduct and modus operandi.