Brown v. State
| Citation | 327 S.E.2d 515,173 Ga.App. 640 |
| Decision Date | 19 February 1985 |
| Docket Number | No. 69162,69162 |
| Parties | BROWN v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
Walter B. Harvey, Athens, for appellant.
Lindsay A. Tise, Jr., Dist. Atty., Barry G. Irwin, Asst. Dist. Atty., for appellee.
Brown appeals his conviction of two counts of statutory rape.
1. Appellant contends error by not allowing him to cross-examine the twelve-year-old victim as to other sexual activity to support his defense that her vaginal infection was caused by someone other than himself.
OCGA § 24-2-3(b) permits introduction of evidence of other sexual activity of the complaining witness only if such behavior involved the defendant or if such evidence supports an inference that the defendant reasonably believed the complaining witness would have consented to his actions. Brown v. State, 170 Ga.App. 305, 317 S.E.2d 307 (1984). The statute has been held applicable to statutory rape, but the exceptions relating to consent and the accused's prior participation are inapplicable in statutory rape cases. Estes v. State, 165 Ga.App. 453(1), 301 S.E.2d 504 (1983). Accordingly, the trial court correctly refused to permit appellant to pursue this line of questioning.
2. Any question concerning error in the failure of the trial court to grant appellant's motion to sever the charge of enticing a child for indecent purposes for separate trial is moot. Appellant was acquitted of this charge and he has shown no harm or prejudice which might have been avoided by severing the trials. Thus, there was no error. See Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856 (1975).
3. Appellant contends it was error to allow the victim's sister to testify that when she was 15 years of age, appellant had sexual intercourse with her forcibly and against her will. Appellant argues that his sexual relationship with a person over the legal age of consent was not relevant to the offense charged. He also argues that since statutory rape is based solely on the age of the victim and force is not an element, his sexual intercourse with the victim's sister was not a similar offense, evidence of which would be admissible to show motive, plan, scheme, bent of mind and course of conduct. See Johnson v. State, 242 Ga. 649, 652-653(3), 250 S.E.2d 394 (1978).
Before evidence of independent crimes is admissible, it is necessary to show that the defendant was the perpetrator of the independent crime, and there must be sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter. There is no question here that appellant was the perpetrator of the independent crime and in our opinion the offenses were similar. The offenses occurred during the same period of time (the summer of 1982) and in all three incidents appellant ordered the girls to remove their clothes or pants. Although force is not an element of statutory rape appellant forced the victim here to remove her clothes by use of threats that her house would be burned down. Thus, the evidence showed a course of conduct and lustful disposition of appellant to have intercourse with both girls, either with or without their consent. See Allen v. State, 163 Ga.App. 586, 587(1), 295 S.E.2d 549 (1982); Walls v. State, 166 Ga.App. 503, 504(2), 304 SE2d 547 (1983). Accordingly, we find no error.
4. Appellant contends the trial court erred by denying his motion for a directed verdict of acquittal on the ground that there was insufficient corroboration of the victim's testimony. This enumeration is without merit.
A ten-year-old neighbor testified that appellant told her he...
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Worth v. State, 74069
...to victim's past sexual encounters irrelevant]; Estes v. State, 165 Ga.App. 453(1), 301 S.E.2d 504 (1983) [incest]; Brown v. State, 173 Ga.App. 640(1), 327 S.E.2d 515 (1985) [statutory rape; defendant wanted to show someone other than he infected the victim]. 5. Defendant contends that the ......
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