Bissell v. State

• Decision Date: 03 February 1981
• Docket Number: No. 61118,61118
• Court: Georgia Court of Appeals
• Parties: BISSELL v. The STATE.

Page 415

278 S.E.2d 415

157 Ga.App. 711

BISSELL v. The STATE.

No. 61118.

Court of Appeals of Georgia.

Feb. 3, 1981.

Rehearing Denied March 2, 1981.

Certiorari Denied April 22, 1981.

Stroud P. Stacy II, Decatur, for appellant.

Ann Poe Mitchell, Madeline S. Griffin, Asst. Dist. Attys., Decatur, for appellee.

QUILLIAN, Chief Judge.

Defendant appeals his conviction for burglary with intent to commit rape and attempted aggravated sodomy. Held :

1. The general grounds are enumerated. The state's evidence was that a man, nude except for his socks and a hood over his head, confronted two young women in their bedclothes in their apartment bedroom about midnight. He had a knife in his hand. Saying he would not hurt them, he told them to take off their clothes, that he wanted sex. When neither woman responded, he advanced on one of the women, indicated his penis, and ordered her to sodomize him while threatening her with the knife. When the woman did nothing he began to tear at her nightgown. The other woman then began to scream and the man fled. Because of the hood neither woman could identify the man. Police investigation established that an open living room window, which the women had closed earlier, had its screen cut out and that a pair of running shorts were found in the living room. Four of six latent fingerprints taken from the outside of the open window were identified as those of defendant by a fingerprint expert. Another woman, living in the same community, testified that 4 days earlier than the date of the crime being tried, at about 2:30 a. m., she was accosted on the patio of her apartment by a naked, knife-wielding man wearing an obscene mask who said he would not hurt her, told her to take her clothes off, and touched her breast. Her husband came to the apartment door at that time and shouted at the man until he slowly left. She thought the defendant looked familiar but could not positively identify him as the intruder. Her husband testified that he had a good look at the man without the mask and identified him as the defendant. No testimonial evidence was presented by the defense.

We find this evidence amply sufficient to authorize a rational jury to find defendant guilty beyond a reasonable doubt. Driggers v. State, 244 Ga. 160(1), 259 S.E.2d 133.

2. Before the state introduced the evidence of the defendant's identification as the perpetrator of a similar crime, the trial court instructed the jury that it was about to hear evidence that "the court expects will show that the defendant in this case was involved in another criminal case of a similar nature." Defendant claims that by this instruction the trial court expressed an opinion of the guilt of defendant in violation of Code Ann. § 81-1104.

Since the transcript does not show that defendant objected to the instruction at trial or requested a mistrial therefor, he is estopped from raising the issue on appeal. State v. Griffin, 240 Ga. 470, 241 S.E.2d 230.

3. Defendant enumerates error because the evidence did not show that the latent fingerprints taken from the window were substantially accounted for the entire time between the time they were taken and their examination by the expert. We find no error. The officer who took the latent prints from the window testified identifying them as such and the expert fingerprint examiner also identified them as the same ones he compared against defendant's known fingerprints. "A chain of custody is not involved where distinct and recognizable objects are identified. (Cits.) Other courts have held this principle to apply to fingerprint evidence. (Cits.) It is our opinion that fingerprints are the type of evidence which need only be properly identified before their admission into evidence." Roland v. State, 137 Ga.App. 796(3), 797, 224 S.E.2d 846. Accord, Hall v. State, 141 Ga.App. 289(1), 233 S.E.2d 262.

4. It is contended that the trial court improperly denied defendant's motion to vacate the conviction and sentence because the same evidence which proved the intent to rape also proved the attempted aggravated sodomy and Code Ann. §§ 26-505(a) and 506(a)(1) bar conviction and sentence for more than one crime if one is included in the other.

We do not agree that the same evidence proved both offenses. In addition, similar arguments have been rejected in Oglesby v. State, 243 Ga. 690(2), 256 S.E.2d 371, in which defendant was convicted of burglary with intent to commit murder of a named person and voluntary manslaughter of that person; and in Moore v. State, 140 Ga.App. 824(2), 232 S.E.2d 264, where defendant was convicted of burglary and attempted armed robbery.

The rationale of these cases is that burglary is a crime against habitation whereas the other crime in each case was a crime against the person. "The statutory definition of these offenses makes it clear that the Georgia legislature also intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by the same proof of all the facts ... (N)either crime is a lesser, or included, offense of the other as a matter...