                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 22, 2015


In the Court of Appeals of Georgia
 A15A1373. SMALLWOOD v. STATE

      BARNES, Presiding Judge.

      Samuel Smallwood appeals his conviction for trafficking in methamphetamine

and possession of drug-related items. Smallwood contends the trial court erred by

failing to grant a mistrial when improper evidence came out regarding his criminal

history. For the reasons that follow, we affirm.

      “[W]hether to grant a motion for mistrial is within the trial court’s sound

discretion, and the trial court’s exercise of that discretion will not be disturbed on

appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.”

(Citation & punctuation omitted.) Wynn v. State, 332 Ga. App. 429, 434 (2) (773

SE2d 393) (2015). We view the evidence on appeal “in the light most favorable to

sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732SE2d 845) (2012). So

viewed, the record shows the following relevant facts.
      Smallwood was traveling in a car with three other people when an officer

pulled them over for a broken tail light. After the officer spoke with the passengers,

he believed three out of the four were high on methamphetamine and decided to

investigate further. The owner of the vehicle consented to a search and the officer

found methamphetamine or drug-related items on all of the passengers, except

Smallwood. On Smallwood’s person they found $2,270 which he claimed belonged

to another passenger. Underneath the car, the officers discovered two magnetic

containers that held more drugs and a gun. The other three occupants of the car

entered plea bargains and agreed to testify against Smallwood at trial. They testified

that the drugs and money belonged to Smallwood, that he stopped at someone’s house

before the drive, and that he approached the rear of the vehicle when they stopped

mid-trip. During the trial, Smallwood moved for mistrial twice alleging that improper

character evidence came out through the testimony.

      The jury found Smallwood guilty of trafficking in methamphetamine and the

possession of drug-related objects. Smallwood moved for a new trial on the same

argument of improper character evidence. The trial court denied the motion and held

that the implicating evidence was not enough to make the trial unfair. Smallwood

filed a timely appeal.

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      1. First, Smallwood contends the trial court erred by failing to grant a mistrial

when character evidence regarding his criminal history came out in an audio/video

recording the State played during trial. He maintains that the admission of evidence

violated his right to a fair and impartial trial before an unbiased jury. We disagree.

      Before trial both parties stipulated that Smallwood’s criminal history would not

come into evidence. The State planned to show the audio/video recording of the

traffic stop and agreed to redact any mention of Smallwood’s past criminal history

including where the arresting officer asked the driver of the vehicle about

Smallwood’s parole status. At trial, the State played the video during the officer’s

testimony but failed to mute the tape before the officer asked about Smallwood’s

parole status. Smallwood objected and moved for a mistrial on the presumption that

the jury heard the officer. The parties agreed the jury never heard a response from the

driver because the State immediately muted the recording, right before Smallwood’s

objection. Since the audio/video recording could not be entered into the record, the

trial court was unsure if the jury heard the full word ‘parole’, as Smallwood claimed,

or just the beginning of the word, as the State claimed. It was also unsure if the

question pertained to Smallwood or to another person and ultimately denied the

motion for mistrial. The trial court offered to either sustain the objection, move to

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strike the material, or provide curative instructions, but Smallwood declined all of

these options.

       Generally, the character of the defendant should not come into evidence unless

he chooses to put his character in issue and “when prejudicial matter is improperly

placed before the jury, a mistrial is appropriate if it is essential to the preservation of

the defendant’s right to a fair trial.” White v. State, 268 Ga. App. 28, 32 (4) (486 SE2d

338) (1997). The decision to grant or deny a mistrial lies within the sole discretion

of the trial court and we review the court’s actions for an abuse of that discretion by

looking at several factors, such as “ the nature of the statement, the other evidence in

the case, and the action taken by the court and counsel concerning the impropriety.”

(Citation & punctuation omitted.) Agee v. State, 279 GA. 774, 777 (4) (621 SE2d

434) (2005). We also consider additional facts like “whether the reference to the

improper character evidence is isolated in brief, whether the jury’s exposure was

repeated or extensive, and whether the introduction of the objectionable evidence was

inadvertent or whether it was deliberately elicited by the State.” Jackson v. State, 321

Ga. App. 607, 610 (1) (739 SE2d 86) (2013).

       Looking at these factors, the trial court did not abuse its discretion in denying

Smallwood’s motion for mistrial. The jury heard the word briefly during a line of

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questioning with a third person witness on an audio/video recording which the State

immediately muted. The jury’s exposure to the word ‘parole’ was brief, the question

was out of context, misleading, unanswered, and the State’s failure to mute the

recording was “clearly inadvertent.”

      Smallwood cites Johnson v. State, 275 Ga. 508, 510 (3) (570 SE2d 292)

(2002), to show that the admitted character evidence violated his right to a fair trial.

But in that case the State entered three certified copies of the defendant’s prior

convictions into evidence, which seems much more prejudicial than a mention of the

word ‘parole’. Id. The present case is more similar to Jackson, 321 Ga. App. at

612(1), where the State unintentionally played a recording implicating the defendant.

The court held that there was no reasonable probability that the statement contributed

to the guilty verdict as the statement was “likely heard by the jury only once” and

“was a brief single, comment made toward the end of an approximately thirty minute

recording.” Id.

      Furthermore, the mere mention of a defendant’s criminal history “falls short of

placing his character at issue.” (Citation & punctuation omitted.) Mathis v. State, 299

Ga. App. 831, 835 (1) (c) (i) (684 SE2d 6) (2009) (upholding the denial of motion for

mistrial when a witness testified the defendant said he did not want to return to jail).

                                           5
Reviewing the evidence in light of the above factors, we find the trial court did not

abuse its discretion in denying Smallwood’s motion for mistrial.

      2. Second, Smallwood contends that the trial court erred by failing to grant a

mistrial when improper character evidence was introduced during witness testimony

regarding the fact defendant had been in prison. We disagree.

      During trial, the State asked the driver of the vehicle to explain his relationship

with Smallwood by establishing they attended junior high school together and they

were still acquainted. When asked if he still remained in contact with Smallwood the

witness replied “[W]e lost contact till he got out of prison two-and-a-half or three

years ago or something like that.” Smallwood objected and moved for a mistrial based

on admission of improper character evidence from both the recording and the witness.

       The State argued that it warned all of its witnesses to avoid mention of

Smallwood’s past criminal history and asked the trial court for curative instructions

to remedy any prejudice. The witness claimed the State never spoke with him about

his testimony or told him to avoid mentioning the fact Smallwood was incarcerated.

Smallwood called the witness’s brother in support of the motion for mistrial to testify

that he had been with the witness all day and no one had approached them about his

testimony. On cross, he admitted that he did not hear everything the State said to his

                                           6
brother. The State acknowledged that it could not be positive anyone spoke with the

witness but reported that it told the other witnesses, the two other passengers and a

police officer, to not bring up Smallwood’s criminal history. The State also argued

that the statement was not responsive to the question asked, and the court agreed the

answer “was certainly not elicited by the state.” The court denied the motion,

concluding that the answer about Smallwood’s prison time was not necessarily

responsive to the question and agreed to give curative instructions to rectify any

prejudice.

      The trial court instructed the jury to disregard the witness’s testimony given

immediately before Smallwood’s objection as irrelevant because “it has no bearing

on this case” and “ [i]t’s something that would be highly improper for you to

consider.” To determine if the jurors understood, it asked the jurors to raise their

hands if they felt they could not follow the instructions and every juror kept his hand

down. Next, it asked the jurors to raise their hands if they thought they could and

would follow the instructions, and this time every juror raised his hand. Smallwood

renewed his motion for mistrial after the curative instructions, which the court again

denied.



                                          7
      Once again, we must review the trial court’s actions for an abuse of discretion

based on the statement, the surrounding circumstances, the court’s response and other

evidence in the case. Agee, 279 Ga. at 777 (4).

       [M]otions for mistrial are largely in the discretion of the trial judge,
      especially where the cause of the motion lies in the voluntary remark of
      a witness not invited by court or counsel, and, where the jury is properly
      instructed and the remark is not so flagrantly prejudicial as to violate the
      fair trial rights of the defendant, the court’s discretion will not be
      overturned


Owens v. State, 250 Ga. App. 61, 61 (550 SE2d 464) (2001). Here, the court ruled

that the State did not elicit a response about the defendant’s past criminal history, but

that the witness volunteered the information. The court then supplied curative

instructions.

      Smallwood cites Jackson v. State, 302 Ga. App. 412, (691 SE2d 553) (2010),

where two witnesses testified about the defendant’s incarceration, one directly after

the other. This court reversed the denial of a motion for mistrial based on the fact that

the court gave curative instructions twice in a short time span and the witnesses’ used

the same language, ‘incarceration’, with clear intent after instructions otherwise. Id.

at 416 (1). Thomas v. State, 322 Ga. App. 734, 741 (3) (746 SE2d 216) (2013).


                                           8
Smallwood’s trial is distinguished because the witness only mentioned the

defendant’s past criminal history in reference to their relationship, and the court gave

curative instructions only once.

      This case is more similar to Morgan v. State, where a witness responded that

the defendant was incarcerated at some point when asked about her relationship with

him. Morgan v. State, 303 Ga. App. 358, 361 (2) (693 SE2d 504) (2010). This court

ruled that “an unresponsive answer that impacts negatively on a defendant’s character

does not improperly place the defendant’s character in issue.” Id. at 362 (1). Here, the

witness testified that he lost contact with Smallwood while he was in prison when the

State attempted to ask about their relationship.

      Furthermore, “no mistrial would have been granted as a nonresponsive answer

that impacts negatively on defendant’s character does not improperly place the

defendants character in issue.” Id. at 362 (1). See also Billings v. State, 308 Ga. App.

248, 253 (4) (707 SE2d 177) (2011).

      Additionally, any error that arose from the jury having heard these unsolicited

passing references to Smallwood’s previous criminal entanglements was harmless in

light of the overwhelming evidence against Smallwood. As noted earlier, all three of

the car’s other occupants pled guilty to various offenses and testified at trial for the

                                           9
State. One of the passengers, who had dated Smallwood for about six months,

testified that the money and drugs belonged to Smallwood. She described stopping

at a house where Smallwood went in and came out with a box that looked like the one

containing methamphetamine that the police found under the car.

      We conclude that the trial court did not abuse its discretion in denying

Smallwood’s motion for mistrial because the witness’s comment was nonresponsive,

brief, and the trial court provided curative instructions, and because the evidence

against Smallwood was overwhelming.

      Judgment affirmed. Ray and McMillian, JJ., concur.




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