547 S.E.2d 569 (Ga.App. 2001), A01A0061, Green v. State

Docket Nº:A01A0061.
Citation:547 S.E.2d 569, 249 Ga.App. 546
Opinion Judge:MIKELL, Judge
Party Name:GREEN v. The STATE.
Attorney:William J. Mason, Columbus, for appellant., James Green, pro se., J. Gray Conger, Dist. Atty., Stacey S. Jackson, Asst. Dist. Atty., for appellee. William J. Mason, for appellant. James Green, pro se. J. Gray Conger, District Attorney, Stacey S. Jackson, Assistant District Attorney, for appellee.
Judge Panel:BLACKBURN, C.J., and POPE, P.J., concur.
Case Date:February 21, 2001
Court:Court of Appeals of Georgia
 
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Page 569

547 S.E.2d 569 (Ga.App. 2001)

249 Ga.App. 546

GREEN

v.

The STATE.

No. A01A0061.

Court of Appeals of Georgia

February 21, 2001

Reconsideration Denied May 9, 2001.

Certiorari Denied October 1, 2001.

Page 570

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Page 571

[Copyrighted Material Omitted]

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[249 Ga.App. 556] William J. Mason, Columbus, for appellant.

James Green, pro se.

J. Gray Conger, Dist. Atty., Stacey S. Jackson, Asst. Dist. Atty., for appellee.

MIKELL, Judge.

James Green was convicted of two counts of rape, two counts of aggravated sodomy, two counts of aggravated assault, two counts of burglary, one count of criminal attempt to commit armed robbery, and one count of possession of a firearm during the commission of a crime. He filed a motion for new trial, which the court denied. This appeal followed. We affirm Green's conviction on all counts except one count of aggravated sodomy.

The charges for which Green was convicted involved two victims. Viewed in the light most favorable to the verdict, the evidence shows that between 1:00 a.m. and 2:00 a.m. on January 16, 1998, the first victim was awakened by a man, who was later identified as Green, holding a knife to her throat. According to the victim, the man told her, "[b]itch, if you move, I'll kill you." The victim later recognized the knife as one from her kitchen. The man ripped off the victim's housecoat and forced her to perform oral sex on him. According to the victim, the man told her, "if you bite me, I'll stick this knife straight through your brain." The victim was subsequently forced to lick the man's anus. Next, the man pushed the victim down on the bed and raped her. During the course of the rape, the man ejaculated. Afterward, the man grabbed the victim by the throat and forced her to take a shower. The victim testified that before leaving, the man told her to remember to lock her windows.

The victim called 911 immediately after her attacker left. The law enforcement officers who arrived on the scene observed evidence that the attacker had gained entry into the victim's trailer home through a window. There was mud on the couch positioned below the window, and a lawn chair was found below the same window outside the home. The officers took the victim to the hospital where a rape kit was performed to preserve physical evidence.

The first victim was unable to get a sufficient look at her attacker to make an identification based on his appearance. During the subsequent investigation, she was shown a lineup that did not include Green. The victim identified a suspect by his voice, but she told the officers that she was not certain. It was later determined that the blood sample from that suspect did not match samples taken from the seminal fluid found on the victim. However, subsequent testing following his arrest for an attack on the second victim [249 Ga.App. 547] involved in this case revealed that the seminal fluid matched Green's DNA.

The second victim was attacked on March 28, 1998. She recognized Green as her attacker, because they lived in the same trailer park, and she had seen him on the basketball court earlier that day. The second victim testified that Green lived three or four trailers down the street from hers, and that she had once allowed Green to play videogames in her home.

The second victim's sister and her three children were staying with the victim on the night of the attack, and the sister testified that Green knocked on the door earlier that night to ask if the victim was home. The sister told him that he would have to come back later, because they were asleep.

The second victim slept on her couch on the night of the attack. She was awakened by Green coming through her front door waving a gun. The victim jumped up and tried to grab Green's hands, but he forced her to lie facedown on the couch. The victim testified that Green cocked the gun, held it to her, head, and told her "I will not hesitate to kill you.... This is not the first trailer I done broke in [sic]." Green asked the victim if there was any money in the home. The victim could not locate her purse, so Green forced her to remove her clothing and bend over the couch while he held the gun to her back. Green removed his pants, placed his mouth on her vagina, and then "placed his penis inside her."

Page 573

After the rape, Green instructed the victim to search for her purse. She was unable to locate it, and Green told her to kneel on the floor. The victim testified that she thought Green would kill her, because he kept repeating that she had seen him. Fearing for her life, the victim grabbed for Green's gun, and they began to "tussle." During the struggle, the victim bit Green and screamed for help. The noise woke the victim's sister, and she turned on the lights and grabbed the telephone, threatening to call the authorities. Green regained control of the gun, fired a shot into the ceiling, and ran out of the trailer. The victim's sister called the police.

Officer John Bailey of the Columbus Police Department responded to the 911 call. He described the victim as "extremely upset." After she calmed down, the victim told Officer Bailey that a man she knew as "Mike," who lived in the trailer park, "had broken into her trailer and raped her at gunpoint." She also provided a physical description of her attacker and told them that he drove a small blue car.

Officer Bailey and another officer walked around the trailer park and spoke with one of the residents, Willie Lee Higdon. Higdon told the officers that he did not know anyone named Mike in the area, but that Green, who fit the attacker's description, rented a room in Higdon's [249 Ga.App. 548] trailer, which was located next door to the first victim's home. The officers also learned from Higdon that Green drove a blue car with a Tennessee license plate and that his girlfriend lived in Holly Hills apartments. The officers proceeded to the apartment complex, where they observed a car fitting Higdon's description. After speaking with the property manager, the officers located Green's girlfriend's residence.

Officer Bailey and two other officers went to the apartment and found Green inside. Officer Bailey testified that they observed cuts and bruises on Green's hands. Green consented to a search of his vehicle. The officers recovered a gun case containing several rounds of bullets and a holster.

Next, Green and his girlfriend, Charlotte Mitchell, signed forms consenting to the search of the apartment. The officers located a .38 caliber Rossi revolver on the couch. The weapon contained four live rounds and one spent cartridge. Detective Barry Davis testified that the bullet hole in the second victim's ceiling appeared consistent with the use of a .38 caliber revolver. Green was taken into custody and subsequently indicted for the crimes of rape, aggravated sodomy, aggravated assault, sodomy, burglary, attempted armed robbery, and possession of a firearm during the commission of a crime.

At trial, a forensic scientist from the Georgia Bureau of Investigation testified...

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