Court of Appeals

of the State of Georgia

ATLANTA,____________________

The Court of Appeals hereby passes the following order:

A15A0135. WILLIAMS v. THE STATE.

In connection with obtaining moniesfrom four Cobb County residents ages 70

and older in exchange for promises to perform repair and maintenance at their

respective houses, Billy Eugene Williams was convicted after a jury trial of four

counts of theft by deception and four counts of exploitation of an elder person. His

motion for new trial was denied, and Williams filed this direct appeal. For the

following reasons, we remand this case for completion of the record.

In several claims of error, Williams conteststhe admission of evidence allowed

as similar transactions.1In particular, the state called to the stand six Bartow County

residents; they testified about their dealings with Williams,who obtained their monies

after promising to perform repair and maintenance at their respective houses.

1 Williams was tried in 2009, under Georgia’s old Evidence Code. See Ga. L.

2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence Code applies “to

anymotion made or hearing or trial commenced on or after” January 1, 2013). “Under

the old Evidence Code, evidence of an independent act could be offered to prove such

things as motive, intent, bent of mind, course of conduct, intent, plan, scheme, or

identity.” Peoples v. State, 295 Ga. 44, 54 (4) (b) (757 SE2d 646) (2014) (citations

omitted). See generally Whitehead v. State, 287 Ga. 242, 249 (3) (695 SE2d 255)

(2010) (referring to evidence of independent offenses or bad acts as “similar

transaction evidence,” where case was tried under Georgia’s old Evidence Code);

Scruggs v. State, 295 Ga. 840, 841 (2), n. 2 (764 SE2d 413) (2014).

July 08, 2015
Williams contends that the trial court erred by admitting the similar transaction

evidence prior to satisfying the rule that, before evidence of an independent offense

or act can be admitted, the court must hold a hearing as required by Rule 31.3 (b) and

make the three on-the-record findingsrequired by Williams v. State.2 Williams points

out that the trial court did not enter a written order explicitly finding that the evidence

proffered satisfied the three-step analysis for admissibility. And he asserts, “The

record further reflects that there was no hearing held by the trial court on this critical

matter.”

But as he acknowledgesin his brief, Williams wastried on a re-indictment, and

the state had filed in the case under the initial indictment notice of itsintent to present

evidence of the Bartow County incidents. Williams states further in his brief,

“Williams does not dispute that the State filed a notice on July 20, 2009 announcing

its intention to offer at trial proof of similar transaction evidence regarding activities

in Bartow County.” And the trial transcript shows that, just before the court

summoned the jurors into the courtroom to administer the trial oath, the prosecutor

reminded the court of the state’s intent to present evidence of similar transactions.

The following transpired.

Trial Judge: Okay. [Defense counsel], do you have any comment on

that?

Defense Counsel: No, your Honor. 

Trial Judge: Well, you don’t have due process issues. They have notice.

They’ve had an opportunity to be heard. And I’ll rely on my prior

rulings.

Prosecutor: Okay. Thank you.

Trial Judge: Bring in the jury.

2

261 Ga. 640 (409 SE2d 649) (1991); see Peoples, supra at 55 (4) (b)

(reiterating that before evidence of an independent offense or act can be admitted, the

state must give notice to the defendant, and the “court must hold the hearing required

by Rule 31.3 (B) and make the three on-the-record findings required by Williams,”

supra).
Yet no transcript of a similar transaction hearing has been included in the

appellate record. Williams thus “submits that the trial court’s apparent failure to

conduct the required hearing and to issue the required factual findings necessarily

represents an abuse of its discretion, as the similar transaction evidence is not

admissible absent full compliance with the mandated procedure.”3 Williams argues

that he “should thus be granted a new trial based on the present record.”

The state disagrees with Williams, taking the position that the above trial

transcript excerpt makes it “apparent that there was a pretrial hearing and there was

a ruling.”4

With respect to what measures the trial court undertook prior to ruling that the

contested evidence was admissible assimilar transactions, the record provided to this

Court does not fully disclose what transpired in the trial court and the parties do not

agree thereon.5 Given these circumstances, we REMAND this case tomake the record

3

 (Emphasis supplied.)

4

(Emphasis supplied.) See generally Hanes v. State, 294 Ga. 521, 523-524 (2)

(755 SE2d 151) (2014) (rejecting claim that reversible error occurred, where the

original indictment was dismissed, the defendant was re-indicted, and under the new

indictment, the trial court sua sponte adopted its ruling based on the hearings

associated with the original indictment); Whitehead, supra at 249 (2) (contemplating

that objections to similar transaction evidence would be raised and ruled upon at a

Rule 31.3 (B) hearing); Guild v. State, 234 Ga. App. 862, 869 (9) (508 SE2d 231)

(1998) (noting that “an objection regarding the purpose for the admission of [similar

transaction] evidence should have been made at the time admissibility was being

determined, i.e., at the similar transaction hearing”) (citation omitted).

5 See OCGA § 5-6-41 (f). See generally Matthews v. State, 294 Ga. App. 836,

841-842 (4) (670 SE2d 520) (2008) (“This court will not presume the trial court

committed error where, that fact does not affirmatively appear.”) (citation omitted). 
conform to the truth in accordance with OCGA § 5-6-41.6

Additionally, we note that in connection with the alleged lack of a similar

transaction hearing, Williams charges both his trial counsel and his first postconviction counsel with rendering ineffective assistance. But Williams has failed to

include in the appellate record the transcript of the hearing on the motion for new

trial. Upon remand, the clerk of the trial court is hereby directed to include with any

record-supplement to be transmitted to this court a transcript of the hearing on

Williams’s motion for new trial.

Upon completion of the record as set forth above, this case may be transferred

back to this Court for re-docketing. The parties and the trial court are hereby directed

to expedite this matter to minimize further delay in the disposition of Williams’s

direct appeal.

Court of Appeals of the State of Georgia

Clerk’s Office, Atlanta,____________________

I certify that the above is a true extract from

the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

, Clerk.

6 Notably, both Williams and the state are represented on appeal by attorneys

who did not represent them at trial.

07/08/2015