☢ test - Í

(1997); Hill v. State, 259 Ga. 557, 559(7)(b), 385 S.E.2d 404 (1989).” 3. GENERALLY

New case! Everhart v. State, A16A0652, ___ Ga.App. ___, ___ S.E.2d ___, 2016 WL 3064872 (May 25, 2016). Child cruelty convictions affirmed; under 2013 Evidence Code, trial court properly allowed State to present prior difficulties evidence without pretrial hearing. “Because [OCGA § 24-4-404(b)] excludes from the notice requirement evidence of prior difficulties between a defendant and a victim and, unlike Rule 31.3, says nothing about a mandatory hearing, we decline to read it as implicitly mandating a hearing before admission of evidence of prior difficulties.” Talmadge v. State, 287 Ga.App. 332, 651 S.E.2d 469 (August 22, 2007). In defendant’s prosecution for disorderly conduct (using fighting words), trial court erred “by excluding evidence of provocation,” specifically, “a history of contentious confrontations between [victim] Roberts and the Talmadge family. … [T]he trial court excluded evidence of this history as irrelevant, and ruled that only matters ‘immediately contemporaneous with this alleged incident’ were admissible as evidence of provocation. This was error. ‘Evidence is relevant and, therefore, admissible if it tends to prove a material issue in the case. OCGA § 24-2-1.’ Brown v. State, 270 Ga. 601-602 (512 S.E.2d 260) (1999). In determining whether or not there was sufficient provocation for Talmadge’s use of the fighting words, the jury was entitled to consider all the facts and circumstances tending to prove provocation, including ‘the relationship of the parties [and] the state of feeling existing between them,’ not just facts and circumstances contemporaneous with the use of the fighting words. Wilson, 223 Ga. at 533; Fish v. State, 124 Ga. 416 (52 SE 737) (1905); Raines v. State, 73 Ga.App. 177, 179-180 (36 S.E.2d 64) (1945).” Clark v. State, 278 Ga.App. 412, 629 S.E.2d 103 (March 23, 2006). Physical precedent only. Failure to give contemporaneous limiting instruction on prior difficulties evidence was not error, absent a request for such instruction. See State v. Belt , 269 Ga. 763, 764 505 S.E.2d 1 (1998). Accord, Cooks v. State , 289 Ga.App. 179, 656 S.E.2d 851 (January 14, 2008). Freeman v. State, 269 Ga.App. 435, 604 S.E.2d 280 (September 2, 2004). Apparently a decision of first impression, “the similar transaction evidence requirements of USCR 31.3 do not apply to the evidence of a subsequent difficulty between Freeman and his daughter. The trial court therefore was not required to hold a USCR 31.3 hearing before admitting such evidence.” “Under the circumstances of the instant case [similar acts of child molestation, committed in different counties over a period of months] … we can see no material difference between … prior and subsequent difficulties evidence.” Accord, Clark v. State , 282 Ga.App. 248, 638 S.E.2d 397 (November 2, 2006); Reed v. State , 309 Ga.App. 183, 709 S.E.2d 847 (March 23, 2011); Futch v. State , 316 Ga.App. 376, 730 S.E.2d 14 (June 25, 2012). McDonald v. State, 256 Ga.App. 319, 568 S.E.2d 546 (July 2, 2002). Approves admission of evidence of subsequent difficulties between parties, but cites no authority therefor, and based in large part on defendant’s failure to object. Leaves open the question whether court is required to hold a pre-trial hearing, unlike prior difficulties. See Freeman (September 2, 2004),above. Wall v. State, 269 Ga. 506, 500 S.E.2d 904 (June 1, 1998). Malice murder and related convictions affirmed. Overrules a line of prior precedent and holds that prior difficulties evidence does not require pre-trial notice and hearing as required for similar transaction evidence under USCR 31.1 and 31.3. “However, the admission of such evidence should be accompanied by an instruction from the trial judge explaining the limited use to which the jury may put such evidence. O'Toole v. State, 258 Ga. 614(6), 373 S.E.2d 12 (1988); Kettman v. State, 257 Ga. 603(7), 362 S.E.2d 342 (1987).” Accord, Laney v. State , 271 Ga. 194, 515 S.E.2d 610 (May 17, 1999); Suggs v. State , 272 Ga. 85, 526 S.E.2d 347 (February 14, 2000); Myrick v. State, 242 Ga.App. 892, 531 S.E.2d 766 (March 20, 2000) (uncharged acts of sexual abuse against same minor victims properly admitted); Daker v. State, 243 Ga.App. 848, 533 S.E.2d 393 (April 11, 2000); Breazeale v. State , 290 Ga.App. 632, 660 S.E.2d 376 (January 23, 2008); Dunn v. State , 292 Ga. 359, 736 S.E.2d 392 (January 7, 2013). 4. PRIOR ACQUITTAL Scott v. State , 243 Ga.App. 383, 532 S.E.2d 141 (March 22, 2000). Aggravated battery convictions affirmed; trial court erred, but harmless, in admitting evidence of prior difficulty with victim for which defendant was acquitted at trial. “While the admissibility of the State's evidence of ‘prior difficulties’ between the accused and the victim no longer must be determined at a pre-trial hearing under Uniform Superior Court Rules 31.1 and 31.3, [fn] the circumstance here of Scott's prior acquittal of a criminal charge arising out of the proffered prior difficulty does demand close pre-trial