(Citations and punctuation omitted.) Salcedo v. State, 258 Ga. 870 ( 376 S.E.2d 360) (1989). Specifically, "it must be determined whether an issue that was in dispute in the previous trial — and resolved in the defendant's favor — is what the state is now trying to establish in this trial, notwithstanding the previous acquittal."
Although some jurisdictions have adopted a per se rule prohibiting any evidentiary use of independent offenses where an acquittal was obtained, [the Georgia Supreme Court] has not. Instead, the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant's favor at the first trial.Salcedo v. State, 258 Ga. 870 ( 376 S.E.2d 360) (1989) (citations and punctuation omitted). The trial court committed procedural error by deciding the admissibility of this prior incident without determining whether the purpose for which the prior incident was offered here (to prove course of conduct and bent of mind) involved an issue resolved in Scott's favor by the verdict of acquittal.
From the judgment of conviction and twenty-year sentence, defendant brings this direct pro se appeal. Held: 1. Defendant first contends the trial court erred in admitting evidence of the separate burglary of Gwendolyn Johnson's apartment. He argues the State never proved he committed that crime and so it is inadmissible, citing Salcedo v. State, 258 Ga. 870 ( 376 S.E.2d 360). "In order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction."
Compare OCGA § 16–1–8(c) (statutorily barring state prosecution when the accused was formerly prosecuted in federal court for a crime within the “concurrent jurisdiction” of Georgia “if such former prosecution resulted in either a conviction or an acquittal and the subsequent prosecution is for the same conduct”). It follows that even if Williams had actually been charged and acquitted in a Florida criminal prosecution premised on Jessica's 1993 allegations, collateral estoppel would not have required the exclusion of the similar transaction testimony in his Georgia trial. We note that in Salcedo v. State, 258 Ga. 870, 376 S.E.2d 360 (1989), this Court applied Moore to hold that collateral estoppel barred the State from presenting similar transaction evidence about a prior sexual assault for which the defendant was tried and acquitted in Florida, without consideration of Heath and the dual sovereignty doctrine. See id. at 870–871, 376 S.E.2d 360.
Gardner v. State, 273 Ga. 809, 810 (2) ( 546 SE2d 490) (2001). See also Salcedo v. State, 258 Ga. 870 ( 376 SE2d 360) (1989). It applies "only after examining whether certain facts were resolved in the defendant's favor at a prior trial."
Appellant argues that the evidence should not be admitted because he was subsequently acquitted of all charges arising from that incident in a trial that took place nine months after appellant was convicted of Johnson's murder. Appellant relies on this Court's decision inSalcedo v. State, 258 Ga. 870 ( 376 S.E.2d 360) (1989), where this Court held that the collateral estoppel effect of an independent offense where an acquittal was obtained depends on what facts were in issue and whether they were resolved in the defendant's favor. Based on this reasoning, this Court reversed the conviction of a defendant convicted of rape due to the improper admission of similar transaction evidence for the purpose of showing intent where the defendant had been acquitted of the crime and had the issue of intent resolved in his favor.
Because Carter was acquitted of the 1984 charge, its use as a "similar transaction" in a future trial is likely precluded. See Salcedo v. State, 258 Ga. 870 ( 376 S.E.2d 360) (1989). It is my view, likewise, that the error, if any, referred to in Division 3 of the opinion would not require a reversal.
Only if there had been a trial in 1973 and if the issue of Harmon's intent had been resolved in his favor, would the prosecution have been estopped from presenting evidence of this prior incident. Salcedo v. State, 258 Ga. 870, 871 ( 376 S.E.2d 360) (1989); Moore v. State, 254 Ga. 674, 676 ( 333 S.E.2d 605) (1985) (application of estoppel requires an examination of what facts were resolved in defendant's favor at a prior trial). Judgment affirmed. All the Justices concur.
Although some jurisdictions have adopted a per se rule prohibiting any evidentiary use of independent offenses where an acquittal was obtained, this [C]ourt has not. Instead, the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant's favor at the first trial.Salcedo v. State, 258 Ga. 870 ( 376 SE2d 360) (1989) (citations and punctuation omitted). Given the circumstances under which Cobb's first case was terminated, it cannot be concluded that the facts in issue were necessarily resolved in Cobb's favor. For that reason, Cobb's reliance upon Riley is misplaced.
The State's argument that the testimony was admissible as part of the res gestae misses the mark, for the issue in the motion in limine was not whether the testimony was relevant or otherwise admissible but whether admission was precluded as a matter of collateral estoppel. See Salcedo v. State, 258 Ga. 870, 871 ( 376 S.E.2d 360) (1989); Moore v. State, 254 Ga. 674, 675-677 ( 333 S.E.2d 605) (1985). The relevant inquiry then becomes whether the court erred in denying the motion for mistrial when the prohibited testimony was mentioned. Whether to grant a mistrial due to the mentioning of improper evidence is left to the sound discretion of the trial court, which we review only for abuse based on a "consideration of the nature of the statement, the other evidence introduced during the trial, and the action taken by the court and counsel concerning the impropriety."