Clemmons v. State
| Decision Date | 21 October 1993 |
| Docket Number | No. A93A1590,A93A1590 |
| Citation | 437 S.E.2d 350,210 Ga.App. 632 |
| Parties | CLEMMONS v. The STATE. |
| Court | Georgia Court of Appeals |
Johnny B. Mostiler, Griffin, for appellant.
Johnnie L. Caldwell, Jr., Dist. Atty., Daniel A. Hiatt, William T. McBroom III, Asst. Dist. Attys., for appellee.
Hartford Clemmons appeals from his convictions of rape, aggravated assault, false imprisonment and possession of a firearm during the commission of a felony. The trial court, pursuant to Clemmons' request, appointed counsel to represent Clemmons on appeal. His appointed attorney has filed enumerations of error and a brief. Clemmons has also filed, pro se, a supplemental brief raising several errors not contained in his counsel's enumerations or brief. Clemmons did not obtain leave of court to file a supplemental brief. Court of Appeals Rule 12. Moreover, because the appellant does not have a right to be represented by counsel and also represent himself, we will consider only the enumerations of error and brief presented by counsel. Boyd v. State, 195 Ga.App. 758, 759, 395 S.E.2d 7 (1990).
1. Clemmons contends that the trial court erred in denying his motions for a directed verdict and a new trial on the charge of possession of a firearm during the commission of a felony because of a fatal variance between the allegata and probata. Clemmons claims that although he was indicted for having a pistol on his person during the rape, the evidence shows that he had the gun on his person only before, not during, the rape. This argument is without merit because, viewing the evidence in the light most favorable to the verdict, the jury could have found beyond a reasonable doubt that Clemmons had the gun on his person during the rape. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Williams v. State, 208 Ga.App. 12, 14, 430 S.E.2d 157 (1993). The evidence shows that the victim and a friend, Paul Giles, visited Clemmons at his house. Giles left the house to purchase beer. While he was gone, Clemmons hit the victim in the face with his hand, knocked her to the ground and stomped on her stomach with his foot. When Giles returned to the house, Clemmons grabbed a gun from behind a dresser, pointed it at Giles and threatened to shoot him if he did not leave the house. Giles testified that the victim then attempted to leave the house, but Clemmons would not let her and instead forced Giles to leave. After Giles left, Clemmons forced the victim onto a bed after placing the gun on the nearby dresser, and completed the rape.
It is true that this evidence shows that Clemmons did not have the gun on his person at the instant of penetration. Carnal knowledge, however, is only one element of the crime of rape. (Emphasis supplied.) OCGA § 16-6-1(a). Williamson v. State, 186 Ga.App. 589(1), 367 S.E.2d 863 (1988). "Intimidation may substitute for force." (Citations and punctuation omitted.) Raines v. State, 191 Ga.App. 743, 744(1), 382 S.E.2d 738 (1989). Here, the jury was authorized to find that the force element of the rape began when Clemmons first hit the victim. That force continued when Clemmons used the gun to make Giles leave the house, immediately after which he placed the gun on the dresser and forced the victim to submit to sexual intercourse. Under these facts, the jury could have concluded that Clemmons, although he did not point the gun at the victim, used it to intimidate her and had the gun on his person during the ongoing force applied to accomplish the rape. There is, therefore, no variance between the allegation and the proof.
Even if there were a variance, it would not be fatal. ...
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In re Ray
...6. (Citations and punctuation omitted.) Adams v. State, 234 Ga.App. 696, 697(3), 507 S.E.2d 538 (1998); accord Clemmons v. State, 210 Ga.App. 632, 634(2), 437 S.E.2d 350 (1993); Trevino v. Flanders, 231 Ga.App. 782(1), 501 S.E.2d 13 (1998). 7. In re Roscoe, 242 Ga.App. 440, 529 S.E.2d 897 (......
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Heaton v. State, A94A1080
...doubt that Heaton was in possession of a gun immediately before and during the confrontation with Mitchell. See Clemmons v. State, 210 Ga.App. 632, 437 S.E.2d 350 (1993); Hood v. State, 192 Ga.App. 150(1), 384 S.E.2d 242 (1989). The indictment charged Heaton with the offense of terroristic ......
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Peterkin v. State, A96A1603
...consider the enumerations of error and brief presented by counsel when a party is represented by counsel on appeal. Clemmons v. State, 210 Ga.App. 632, 437 S.E.2d 350. Consequently, in the case sub judice, there would be no use in granting defendant's request for an extension of time to fil......