Following a bench trial, factually stipulated for trial purposes to preclude the State’s witnesses from having to appear, while preserving the due process issues for appellate review, Brittany Wade appeals her conviction of DUI less-safe,1 contending that her bent of mind or intent is not an element of this crime and that the use of similar transaction evidence to show same is prejudicial and not needed by the State. While acknowledging, for the purpose of the bench trial, that Georgia appellate cases currently authorize such similar transaction evidence, she contends, that such holdings violate her Federal and State Constitutional right of due process as they permit the introduction of evidence of a separate crime with no logical connection between the two. The bent of Wade’s mind or her intent at the time of her current charge is not a necessary element of proof by the State in the trial of this DUI case. It is not probative, is not needed by the State, and is inherently prejudicial. See Cawthon v. State .2 The State argues that Wade waived her argument on appeal by failing to object to the similar transaction evidence when it was admitted during the bench trial. Wade however, was explicit that she consented to the stipulated bench trial for the purpose of preserving her constitutional and statutory challenge on appeal to the Georgia law of similar transaction evidence. It is clear from the record that Wade outlined her objections at the bench trial, that she acceded to the admission of the evidence only for “purposes of what we’re doing in the stipulated bench trial.” In a discussion between Wade’s counsel, Mr. Head, and the trial court concerning the stipulation of facts for a bench trial and to avoid having to call witnesses, the following was said:THE COURT: There will not be any appealable issue other than whether constitutionally the similar transaction should come in.MR. HEAD: Well, we did a statutory challenge, too. Statutory andconstitutional.
THE COURT: Right. Statutory and constitutional.MR. HEAD: That’s the only issue, yes. Mr Head further stated, . . . . “That’s why we’re doing this stipulated bench trial, to save court time and not drag a jury through this case.” The State provided notice of its intent to introduce at trial a prior DUI conviction to show Wade’s bent of mind and course of conduct, and the trial court held a hearing during which Wade stipulated to the admission of such evidence at trial only to prevent the State’s witnesses from having to appear, but reserved, with the court’s permission, the issue of the constitutionality of the admission of such evidence for appellate review. We therefore treat Wade’s arguments as preserved for appeal.
