Collins v. State

• Decision Date: 04 December 1997
• Docket Number: No. A97A0963,A97A0963
• Parties: , 98 FCDR 32 COLLINS v. The STATE.
• Court: Georgia Court of Appeals

Page 59

495 S.E.2d 59

229 Ga.App. 658, 98 FCDR 32

COLLINS v. The STATE.

No. A97A0963.

Court of Appeals of Georgia.

Dec. 4, 1997.

Certiorari Granted March 2, 1998.

Kendal D. Silas, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Lee A. Mangone, Robert M. Coker, Assistant District Attorneys, for appellee.

SMITH, Judge.

William Perry Collins was indicted by a DeKalb County grand jury on one count of rape, OCGA § 16-6-1(a), one count of statutory rape, OCGA § 16-6-3(a), and one count of incest, OCGA § 16-6-22(a)(1). He was convicted by a jury on all three counts, and his motion for new trial was denied. Collins appeals, asserting the general grounds and the existence of newly discovered evidence. Because the State failed to prove the element of force required in the offense of rape, we reverse as to that conviction. The remaining convictions are affirmed.

1. Collins asserts the general grounds, contending specifically that the State failed to prove force, and that the State failed to show the corroboration required for a conviction of statutory rape.

(a) Common-law or forcible rape consists of three elements: (1) carnal knowledge of a female; (2) forcibly; and (3) against her will. OCGA § 16-6-1(a). The State points to no evidence of force, asserting that force need not be proved when the victim is a minor. ¹ This is an incorrect statement of the law.

In Drake v. State, 239 Ga. 232, 233(1), 236 S.E.2d 748 (1977), the Supreme Court of Georgia expressly held that force is a necessary element of the offense of common-law or forcible rape against an under-age victim. Noting that a female under the age of 14 is legally incapable of giving consent, the Supreme Court distinguished between the element of nonconsent and that of force: "When an act of sexual intercourse with a girl under 14 is shown, statutory rape is shown. If the state desires to convict a defendant of forcible rape, it must prove the element of force by acts of force (or mental coercion)--age has nothing to do with it. Considerations of 'consent' and 'force' and 'against her will' are irrelevant in a statutory rape case, and the age of the victim is irrelevant in a forcible rape case except insofar as it may show her incapable of giving consent and thereby supply the 'against her will' element. Force must also be shown, of course." Id. at 233-234, 236 S.E.2d 748. "Were the contrary true--that the victim's age supplies the element of force--then as a practical matter no one would be convicted of statutory rape because the state's case making out statutory rape also would make out forcible rape." Id. at 234, 236 S.E.2d 748.

In Edmonson v. State, 219 Ga.App. 323, 324(2), 464 S.E.2d 839 (1995) (special concurrence as to Division 3 only), this court cited Drake for the proposition that a female under 14 years old is legally incapable of consenting to sex. Again citing Drake, this Court then reasoned that "[w]here this is the case, 'the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.' [Cit.]" Id.

Edmonson, however, conflates the issues of lack of consent and force in precisely the manner forbidden by the Drake decision, and it takes out of context and misapplies the quoted language. The Supreme Court in Drake makes it plain that the language quoted in Edmonson applies "only where children are not involved," and a female of legal age is unable to consent because she is "intoxicated, drugged, or mentally incompetent." Drake, supra at 234, 236 S.E.2d 748. Only in such situations, according to the Supreme Court, "the requirement of force is found in constructive force." Id. To the extent that Edmonson contradicts the clear holding in Drake that the victim's age alone cannot supply the element of force, it must be overruled.

The State's reliance on Luke v. State, 222 Ga.App. 203, 474 S.E.2d 49 (1996), is misplaced because that case involved aggravated sodomy rather than rape. Moreover, in that decision we discussed at length the Drake holding and the requirement of proof of force, as opposed to lack of consent, in forcible rape cases involving children. Id. at 204-205, 474 S.E.2d 49.

The dissent's reliance on three Supreme Court of Georgia cases is similarly misplaced because none of those cases involves a charge of forcible or common-law rape. In Cooper v. State, 256 Ga. 631, 352 S.E.2d 382 (1987), the defendant committed aggravated sodomy on a five-year-old child. Richardson v. State, 256 Ga. 746, 353 S.E.2d 342 (1987), involves incest and sodomy. In Brown v. State, 268 Ga. 154, 486 S.E.2d 178 (1997), the defendant was charged with malice murder and asserted justification in using deadly force to prevent the molestation of his five-year-old daughter. The dissent ignores the inevitable result of supplying the element of force in forcible rape by the age of the victim: as the Supreme Court observed in Drake, supra, the State simply by proving statutory rape would also prove every element of forcible rape, and the crime of statutory rape would cease to exist.

In this case, the victim testified that Collins asked her to rub his back and then "laid [her] on the bed," pulled off her clothes, and had sex with her. She did not yell or scream. She acknowledged that Collins did not force her onto the bed, and that she did not tell him to stop or to leave her alone. Nowhere did the victim testify that she was threatened, intimidated, or mentally coerced by Collins.

While the State does not cite or rely on his testimony, the physician who examined the victim testified that the victim told him her stepfather "forced her to have sex." The prosecutor then asked the physician whether another, earlier incident involving the victim was "also a forcible assault," and the physician responded, "Yeah, it was also forcible assault. I mean, she didn't give any consent for that." He found no evidence of bruising, abrasions, or lacerations on the victim's body. The physician's ambiguous and conclusory statement with regard to whether the victim was "forced," standing alone, cannot support proof of the necessary element of force beyond a reasonable doubt. It is apparent from his express definition of "forcible assault" as nonconsensual sex that the physician, like the State, confused the issues of nonconsent and force.

The State having failed to show the necessary element of force beyond a reasonable doubt, Collins's conviction for common-law or forcible rape must be reversed.

(b) Collins also contends that his conviction for statutory rape cannot stand without corroboration of the victim's testimony. While this is a correct statement of the law, see OCGA § 16-6-3(a), "the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration and ultimately the question of corroboration is one for the jury." (Citations and punctuation omitted.) Dye v. State, 205 Ga.App. 781, 782, 423 S.E.2d 713 (1992).

Here, the victim's testimony was sufficiently corroborated by medical testimony and physical evidence on the scene, see Shelton v. State, 196 Ga.App. 163(1), 395 S.E.2d 618 (1990), and by the victim's prior consistent statement to her mother. Turner v. State, 223 Ga.App. 448, 450, 477 S.E.2d 847 (1996). Collins correctly notes that the medical testimony was directly contradicted by other medical evidence in the State's case and that the mother's testimony was impeached to some degree. Even more troubling is the victim's frank acknowledgment on the stand that she planned to kill Collins because he attempted to discipline her, that she told Collins she was "going to get rid of him one way or the other," and that she "set out with the intent of getting this man out of [the] house." Collins contends that the victim was also angry with him because he interfered in a sexual relationship between her and another man, her uncle. The victim admitted the relationship and Collins's attempt to end it. Collins contends that, because the victim knew that her uncle had been sent to jail after their relationship came to light, she accused Collins in order to remove him from the house.

As we have noted, however, only slight evidence is necessary to corroborate the victim's testimony. While the evidence was in sharp conflict, this Court cannot weigh testimony, judge the credibility of witnesses, or speculate as to which evidence the jury chose to believe or disbelieve. Thompson v. State, 210 Ga.App. 655, 656(1), 436 S.E.2d 799 (1993). Although the trial court was also troubled and concerned over this evidence, it correctly observed that "all the evidence was presented to the jury and the jury deliberated and reached their verdict." The evidence was sufficient to enable a rational trier of fact to find Collins guilty beyond a reasonable doubt of the offenses of statutory rape and incest as alleged in Counts 2 and 3 of the indictment. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his remaining enumeration of error, Collins seeks a new trial on the ground of newly discovered evidence. He contends that he should be allowed to obtain a medical examination showing that he is free of a venereal disease with which the victim was shown to be infected.

"[M]otions for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless that discretion is abused." (Citations and punctuation omitted.) Davis v. State, 221 Ga.App. 375, 377, 471 S.E.2d 307 (1996). Collins must "satisfy the court (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it...