WILLIAMS v. STATE (2001)

 Appellant's original conviction involving this incident was overturned by this court.   On retrial, he was convicted of aggravated assault with a firearm, aggravated fleeing and eluding, and possession of a firearm by a convicted felon.   He appeals contending the court erred in permitting the testimony of a witness presented during the first trial to be entered in the second trial without sufficient proof of her unavailability and also erred in denying his motion for mistrial when it was revealed that a witness stated that “Tracy wasn't going to be doing this to her ․ anymore.”   We affirm.

We find the efforts to locate the witness, the passenger who was in appellant's vehicle at the time of the incident and who, because she vacated appellant's vehicle and refused to return, provoked the action which followed, was sufficient to sustain the court's discretion to permit her prior testimony to be presented in this case.

We believe the witness' statement that appellant wasn't going to do that to her anymore speaks in futuro and does not indicate prior bad acts.   In any event, in light of all the testimony in this case, even if the statement could be construed to reference prior conduct, it was harmless.

AFFIRMED.

HARRIS, J.

SHARP, W., and PETERSON, JJ., concur.