Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                   July 08, 2015

The Court of Appeals hereby passes the following order:


A15A0135. WILLIAMS v. THE STATE.

      In connection with obtaining monies from 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 contests the admission of evidence allowed
as similar transactions.1 In 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
any motion 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).
       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 findings required 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 acknowledges in his brief, Williams was tried on a re-indictment, and
the state had filed in the case under the initial indictment notice of its intent 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 as similar 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 to make 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 post-
conviction 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
                                                                             07/08/2015
                                               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.
