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DENNIS v. STATE

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Court of Appeals of Georgia.

DENNIS v. The STATE.

No. A09A1895.

Decided: February 03, 2010

Rafe Banks III, Cumming, for Dennis. Penny Alane Penn, for The State.

James Henry Dennis appeals from his forgery conviction and contends in his sole enumeration of error that the trial court erred by excluding evidence of a statement made by his co-defendant, Daniel Denmore. We find no merit in this contention and affirm.

The record shows that Dennis cashed a check written to him on the account of his female roommate, who testified that she never wrote or signed the check. Before deciding whether he would testify, Dennis sought a ruling from the trial court on the admissibility of a statement made by his absent co-defendant, Denmore. Specifically, Dennis sought to testify that Denmore told Dennis that the female roommate had changed her mind about paying him and pointed out a check on the kitchen counter written to Dennis. Dennis's counsel asserted the statement was admissible under the conspirator exception to the hearsay rule. The State asserted a hearsay objection, and the trial court requested authority from Dennis's counsel on the conspirator exception to the hearsay rule. After a discussion of only this exception to the hearsay rule, the trial court found that Denmore's statements were inadmissible hearsay.

On appeal, Dennis asserts that the trial court erred because the statement was admissible both as original evidence to explain his conduct and under the conspirator exception to the hearsay rule.

1. We cannot consider Dennis's claim that the statement was admissible as original evidence to explain his conduct pursuant to OCGA § 24-3-2 because he did not make this argument at the time he sought to admit the statement or at any other time during the trial. See Overby v. State, 237 Ga.App. 730, 732(2)(b), 516 S.E.2d 585 (1999) (declining to consider State's argument that necessity exception to hearsay rule applied because trial court was never asked to consider this theory of admissibility); Ekstedt v. Charter Medical Corp., 192 Ga.App. 248, 249(2), 384 S.E.2d 276 (1989) (refusing to consider necessity exception to hearsay rule as ground for admission of testimony because necessity argument was not raised below). As we are a court of review, “[g]rounds for reversal which may be considered on appeal are limited to those which were argued before the trial court.” Orr v. State, 209 Ga.App. 832, 833, 434 S.E.2d 723 (1993).

2. We find no merit in Dennis's claim that the conspirator exception to the hearsay rule (OCGA § 24-3-5) applies because this exception may only be used to admit statements “against a conspirator and is not a means by which a conspirator may introduce exculpatory evidence.” Dunbar v. State, 205 Ga.App. 867, 869, 424 S.E.2d 43 (1992). See also Wilson v. State, 271 Ga. 811, 814(4), 525 S.E.2d 339 (1999), overruled on other grounds, O'Kelley v. State, 284 Ga. 758, 768(3), 670 S.E.2d 388 (2008).

Judgment affirmed.

SMITH, Presiding Judge.

PHIPPS and BERNES, JJ., concur.

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