Culver v. State

• Decision Date: 16 January 1998
• Docket Number: A97A2076,Nos. A97A2075,s. A97A2075
• Citation: Culver v. State, 496 S.E.2d 292, 230 Ga.App. 224 (Ga. App. 1998)
• Parties: , 98 FCDR 441 CULVER v. The STATE (Two Cases).
• Court: Georgia Court of Appeals

Page 292

496 S.E.2d 292

230 Ga.App. 224, 98 FCDR 441

CULVER v. The STATE (Two Cases).

Nos. A97A2075, A97A2076.

Court of Appeals of Georgia.

Jan. 16, 1998.

Certiorari Denied May 22, 1998.

Mark J. Nathan, Savannah, for appellant.

Spencer Lawton, Jr., District Attorney, Ian R. Heap, Jr., Assistant District Attorney, Thomas M. Cerbone, Savannah, for appellee.

JOHNSON, Judge.

Rodney Culver was tried on multiple felony charges involving six separate incidents described in two separate indictments involving different victims. A jury found him guilty of the following crimes related to the first indictment: three counts of burglary, four counts of rape, five counts of aggravated assault, three counts of possession of a knife during the commission of a crime, four counts of armed robbery, two counts of wearing a mask, robbery by force, three counts of kidnapping, aggravated assault with intent to rape, criminal attempt to commit aggravated sodomy, hijacking a motor vehicle, possession of a firearm during the commission of a crime, kidnapping with bodily injury, and two counts of aggravated sodomy. The jury also found him guilty of the following crimes related to the second indictment: burglary, rape, aggravated assault, kidnapping with bodily injury, and aggravated sodomy. In these two appeals, which we consider together, Culver asserts 19 enumerations of error. For the reasons set forth below, we affirm his convictions.

On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence. See Williams v. State, 228 Ga.App. 698, 699(1), 492 S.E.2d 708 (1997). So construed, the evidence presented at trial shows the following facts, which for clarity describe the six separate incidents involved in chronological order.

On October 2, 1993, between 6:00 and 6:30 a.m., an intruder entered the victim's room with a knife in his hand and woke her. The intruder, wearing a nylon mask, sliced the buttons off her shirt, kept the knife at her throat, and threatened to kill her. The victim's description of her attacker matched Culver's physical description. The victim pleaded for her children's safety as the intruder raped her on the bed. The intruder then dragged her to the floor, raped her again, and made her "play with him." The victim's face was covered with a pillow or blanket as the intruder left. The intruder took approximately $600 from the victim's purse. The victim identified a nylon hair cover found in Culver's house as similar to the one the intruder wore. An expert testified that DNA analysis of semen from a towel found at the scene matched Culver and that the chance of finding another match was one in three billion.

On November 15, 1993, a second victim was working at a gas station convenience store. Culver had come into the store a few times before, but this time he came in shortly after 6:00 a.m. with a dark blue nylon stocking on his face. The victim's description matched Culver's physical characteristics. Culver grabbed her arm, twisted it behind her back, and forced her to give him money from the register. After taking the money, Culver dragged the victim across the floor, threw her into the stockroom, pinned her against the wall, and tried to pull her shorts down. The victim struggled with Culver, who punched her in the eye and knocked her unconscious. When she awoke, he was gone. The victim did not know her assailant's name until she saw his picture on television eight months later. She informed the police that Culver was her assailant, picked his picture out in a photographic line-up, and identified him in court as her assailant. On January 18, 1994, a third victim took her child into a daycare center and returned to her unlocked vehicle at 6:34 a.m. As she drove away, someone in the back seat hit her seat and shoved a gun against the side of her face. Her assailant spoke in a deep, raspy voice and told her where to drive and park. He grabbed her, pulled her into the back seat, made her take off her clothes, then pushed her down and tried to place his penis into her rectum. He covered her head with a mattress pad which was in the cargo area. Then he entered her vagina against her will, wiped her vagina when he had finished the act, and pushed her to the floor of the vehicle. He then pushed her out of the vehicle and drove away. She managed to grab her coat from the vehicle, and she ran to a nearby house, screaming she had been raped. The victim's description of her attacker matched Culver's physical characteristics.

One witness, who worked four doors from the daycare center, identified Culver in court and in a photographic line-up as the individual he saw near the daycare center around 6:00 a.m. on the morning of the rape. According to the witness, Culver looked "weird and dangerous." Another witness also identified Culver in court and in a photographic line-up as the individual she observed on several occasions near the daycare center a week before the rape. She testified that on one occasion, Culver had approached her car and frightened her.

Evidence of seminal fluid was found on a scarf found in the vehicle as well as on the floorboard of the vehicle. An expert testified that DNA analysis of sperm located on the scarf matched Culver and that the chance of finding another match was one in two billion. In addition, chances that semen recovered from the victim's cervix belonged to someone other than Culver were one in six hundred thousand.

At 1:30 a.m. on July 30, 1994, the fourth victim was preparing to take a shower when she heard someone at her door. Although his face was covered, the victim's description of her attacker matched Culver's physical characteristics. He twisted her arm behind her back, forced her into another room and put a knife to her throat. The man ransacked her house and took coins, jewelry, including her wedding ring, and approximately $1,500 in cash. He then hit her in the face, rendering her unconscious. The victim testified she never had consensual sex with Culver, but his semen was found in her vagina.

The victim in this incident does not speak English well, and an interpreter on the scene informed the paramedics and the doctor who gathered the rape kit evidence that the victim indicated that she had been raped. She was treated for injuries to her arm. An expert testified that chances that semen recovered from the victim belonged to someone other than Culver were one in one billion.

On August 17, 1994, the fifth victim arrived at work at approximately 6:35 a.m., when a man caught the door behind her, grabbed her and held a knife to her. He grabbed her arm to control and move her, made her take off her clothes, and forced her to perform oral sex upon him. He then anally sodomized her for several minutes, then made her put his penis back in her mouth. Afterward, he put her on the floor and placed a smock over her head. The man performed oral sex on her briefly and forcibly raped her. He then stole her rings and money from her purse and left. The victim's description of her assailant matched Culver's physical characteristics. She picked out Culver from a photographic array and identified him in court as having an appearance similar to the person who raped her. She also identified a knife seized from Culver's vehicle as very similar to the one he held to her. An expert testified that DNA analysis of sperm found on the carpet on which the victim was raped matched Culver and that the chance of finding another match was one in ten billion.

On April 24, 1994, the sixth victim was awakened at 2:08 a.m. to find a man walking down her hallway toward her room. There were lights on throughout the house, and she described a man matching Culver's physical characteristics. She started screaming, and he told her to shut up and close her eyes. He had a deep voice. The man started choking her, then made her take her clothes off and covered her face. He touched her all over as she pleaded with him not to hurt her. He then raped her as she was on her back, made her perform oral sex on him, and raped her again from behind. After he ejaculated, he wrapped a gown around her head and forced her to walk around the house and give him money. The man then pushed her, kneed her in the back, choked her again, and left.

Sperm found on the bedspread where the victim was raped matched Culver, and an expert testified that the chances of finding another match was one in ten thousand. At the state's request, an additional, possibly exculpatory, DNA test was conducted. However, this test also matched Culver, and evidence showed there is a one in one hundred thousand chance of this match occurring randomly.

The record shows that both a police detective and Culver himself testified as to Culver's physical characteristics at the time of his arrest and at the time of the attacks. Culver's work records indicated he was either late, not scheduled to work, or absent from work during time periods within which the six attacks occurred. In addition, all of the DNA evidence was reviewed by a defense expert, and none of it excluded Culver.

Culver presented alibi evidence at trial. Culver's mother testified that she did not recall specific dates, but that Culver was at home during the April 24, 1994 attack and might have been home or at his girl friend's during the July 30, 1994 attack. His mother also testified that at the time of the August 17, 1994 rape, she was taking Culver to work, but again acknowledged that she did not specifically recall the date.

Culver's girl friend testified that Culver was with her during the October 2, 1993 attack, and the November 15, 1993 attack. She was impeached with three certified copies of convictions against her as well as by evidence of her inconsistent testimony regarding dates and events.

Culver's third and fourth alibi witnesses, the mother of his child and her father could not...