This opinion may be subject to revision before official publication.



[1]     THE SUPREME COURT OF THE STATE OF GEORGIA



[2]     In the Supreme Court of Georgia



[3]     Decided: February 19, 1996



[4]     S95A1981.



[5]     WILKINS



v.



[6]     THE STATE.



[7]     A jury convicted Betty Sue Wilkins of malice murder, felony

murder and three counts of cruelty to children in the death of

three-year old Clayton Miracle and the beating of his twin sister Kelly

Miracle. *fn1 Wilkins appeals contending that the trial court erred in

failing to sever her trial from the trial of her husband Joe Wilkins

*fn2  and in admitting "prior difficulties" evidence.  Because severance

was not required as a matter of due process and because the prior

difficulties evidence was admissible to establish intent, we affirm.



[8]     The evidence showed that the state placed Clayton and Kelly in

foster care with Betty and Joe Wilkins on June 9, 1993.  Betty Wilkins

had primary responsibility for looking after the children because Joe

worked nights and slept during the day.  The twins often soiled their

underpants or misbehaved and Betty routinely punished them for this.  On

August 10, 1993, Betty was in the house with Clayton and Kelly while Joe

was across the street outside a neighbor's house.  According to a

state's witness who overheard Betty describe what happened that day,

Clayton messed in his pants and was crying.  Betty kept hitting him; he

stopped crying and then Joe Wilkins came in and told her to call 911.

Consistent with this testimony, another witness testified that from the

time Betty called Joe to the time the paramedics arrived was under five

minutes.  The state also offered two statements made by Joe Wilkins in

which he stated that he hit Clayton after he had soiled his pants and

that Betty had nothing to do with it.



[9]     Paramedics arrived within minutes of the 911 call and found

Clayton barely breathing, with two large knots on his head, one in the

front and one in back.  The following day, Clayton died as a result of

blunt force trauma to his head.  The Wilkinses initially claimed that

Clayton accidently injured himself and gave several inconsistent stories

to the paramedics and neighbors about the "accident."  The doctor who

performed the autopsy testified that Clayton's fatal injuries could not

have been caused by an accidental fall and that injuries and bruising

found all over Clayton's body  were consistent with battered child

syndrome. Doctors also examined Kelly and found the same pattern of

bruising.



[10]    1.  After reviewing the evidence in the light most favorable to

the jury's determination of guilt, we conclude that a rational trier of

fact could have found Betty Wilkins guilty of the crimes charged. *fn3



[11]    2.  Wilkins contends the trial court abused its discretion in

trying her jointly with her husband because the state introduced her

husband's statement, which implicated her in the cruelty to children

charges, and because their defenses were antagonistic.  The defendant

requesting a severance has the burden of making a clear showing of

prejudice and a denial of due process in the absence of severance. *fn4

Factors the trial court should consider in exercising its discretion

include: (1) whether the number of defendants creates confusion of the

evidence and law applicable to each defendant; (2) whether a danger

exists that evidence admissible against one defendant will be considered

against the other, despite cautionary instructions; and (3) whether the

defenses are antagonistic. *fn5



[12]    (a) Wilkins contends that the failure to sever resulted in a

violation of Bruton v. United States, in which the United States Supreme

Court held that it violates the right of confrontation to introduce a

co-defendant's confession that implicates the defendant in a joint trial

when the co-defendant does not testify. *fn6   In the present case Joe's

statements did not implicate Betty in Clayton's death; rather Joe

consistently told police that Betty had nothing to do with Clayton's

death.  Therefore, there was no Bruton error with regard to the murder

charges.



[13]    Joe also stated that Betty "hit" Clayton and Kelly, and that she

"whipped" them with a fly swatter.  Joe, however, does not describe the

force used and his statements are not inconsistent with Betty's

testimony that she spanked the children and "popped" them with a plastic

fly swatter.  The two counts that charged cruelty to children by

striking Clayton and Kelly about their bodies specified that the

striking left "marks and bruises."  Because Joe's statements by

themselves do not clearly inculpate Betty in these counts, no Bruton

error exists. *fn7



[14]    (b) Betty also contends that the defenses were antagonistic and

required severance.  Although Joe presented evidence that Betty was

responsible for the beating that resulted in Clayton's death, this

evidence was cumulative of the state's evidence against Betty. Because

Betty has not made the requisite showing of harm, *fn8   the trial court

did not abuse its discretion in denying the motion to sever.



[15]    3.  The state presented evidence that Betty Wilkins disciplined

Clayton and Kelly using several methods, including placing soiled

diapers over their heads, forcing them to stand in a cold shower,

threatening to make them go under the house where there were "spiders,

snakes and the Boogeyman," and making them stand for hours in a plastic

garbage bag and hitting them if they moved.  Wilkins contends admission

of this evidence was error because there was no notice or a hearing

under Superior Ct. Rules 31.1 and 31.3.



[16]    (a) The state contends no notice or hearing was required because

the evidence is part of a "continuous transaction," which is excepted

from the notice and hearing requirements. *fn9   Except for the incident

involving the garbage bag, the evidence did not show that these other

actions were related immediately in time to the beatings specified in

the indictment.  Because the other discipline methods were not related

immediately in time to the alleged beatings, but rather were separate

incidents over a two month period, the "continuous transaction"

exception does not apply.  To fall within Rule 31.3 (E) the evidence

sought to be introduced must be related immediately in time and context

to the charged offense. *fn10   Thus, the state's evidence that Wilkins

subjected Clayton and Kelly to excessive and inappropriate discipline is

subject to the notice and hearing requirements of Rules 31.1 and 31.3.



[17]    Despite the state's failure to give formal 31.1 notice, a review

of the record reveals that Wilkins had notice that the state intended to

present this evidence.  Prior to trial, Wilkins contacted the prosecutor

in an attempt to have certain of these incidents redacted from

statements made by Joe Wilkins and another witness.   Furthermore, three

days before trial, Wilkins filed a motion in limine to prevent the state

from referring to the incidents before a proper foundation for their

admission was shown.  Finally,  the trial court heard argument prior to

opening statements on the admissibility of the evidence.  Because

Wilkins had notice and an opportunity to be heard, the spirit of Rule

31.3 was met and the trial court did not commit reversible error in

failing to hold a formal Rule 31.3 hearing. *fn11



[18]    (b) Nor did the court err in admitting the evidence.  Wilkins

was charged with cruelty to children by striking Clayton and Kelly about

their bodies leaving marks and bruises.  The state's theory of the case

was that Wilkins had a pattern of punishing the children in an excessive

manner, including beating them with the wire handle of a fly swatter so

that it left bruises on their bodies.  Evidence of other methods of

discipline that are extreme, but did not leave the children battered and

bruised, is relevant to show Wilkins' intent in disciplining Clayton and

Kelly.  The trial court repeatedly charged the jury that this evidence

was for a limited purpose and that they could convict Wilkins of cruelty

to children only if they found that she committed the offense in the

manner charged in the indictment.



[19]    4.  Wilkins contends that the state's evidence against her

regarding the acts resulting in Clayton's death amounted to an

uncorroborated confession, which is insufficient under O.C.G.A.

Section(s) 24-3- 53.  The facts detailed above, however, provide

sufficient corroboration.



[20]    5.  Wilkins contends the court's charge to the jury was in error

in several respects.  A review of the record shows that the charge,

viewed as a whole, was correct.



[21]    Judgment affirmed.



[22]    All the Justices concur, except Carley and Hines, JJ., who

concur as to Divisions 1, 2, 3(b), 4, 5 and the judgment only..



***** BEGIN FOOTNOTE(S) HERE *****



[23]    *fn1   The beating that lead to the death occurred on August 10,

1993. The grand jury indicted Wilkins on December 7, 1993. She was

charged with malice murder and felony murder with the underlying felony

being cruelty to children by striking Clayton about the head between

August 10 and 11. She was also charged with two counts of cruelty to

children for conduct occurring between June 9, 1993 and August 9, 1993.

The jury returned the guilty verdicts on February 25, 1994. The court

merged the underlying cruelty to children count into the felony murder

count and merged the felony murder count into the malice murder count.

The court sentenced Wilkins to life for murder and to a consecutive 20

year term for one count of cruelty to children and to a concurrent 20

year term for the other cruelty to children count. Wilkins filed a

motion for new trial on March 28, 1994 and an amended motion on March

21, 1995. The trial court denied the motion on May 1, 1995. Wilkins

sought and was granted an extension of time to file an appeal and filed

her notice of appeal on July 27, 1995. The case was docketed in this

court on September 8, 1995 and oral arguments had November 6, 1995.



[24]    *fn2   The jury also convicted Joe Wilkins on all counts. His

case was docketed in this court on February 12, 1996 as Case No.

S96A0811.



[25]    *fn3    Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d

560) (1979).



[26]    *fn4    Dennard v. State, 263 Ga. 453, 455 (435 SE2d 26) (1993).



[27]    *fn5    Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975).



[28]    *fn6   391 U.S. 123 (88 SC 1620, 20 LE2d 476) (1968).



[29]    *fn7    Owens v. State, 193 Ga. App. 661, 662 (388 SE2d 712)

(1989) (for admission of codefendant's statements to constitute Bruton

error, statements "standing alone must clearly inculpate" defendant,

quoting United States v. De Parias, 805 F2d 1447, 1455 (11th Cir.

1986)).



[30]    *fn8   Cain, 235 Ga. at 130.



[31]    *fn9   Sup. Ct. R. Rule 31.3 (E)



[32]    *fn10    Grace v. State, 262 Ga. 746, 747 (425 SE2d 865) (1993).



[33]    *fn11   See Matula v. State, 264 Ga. 673, 675 (449 SE2d 850)

(1994). We remind the district attorney that notice is required before

offering evidence of "prior difficulties" between the defendant and

victim, just as it is for evidence of a defendant's uncharged misconduct

or "similar transactions." Barrett v. State, 263 Ga. 533 (1993).



***** END FOOTNOTE(S) HERE *****