Davis v. State, 72549
| Decision Date | 03 September 1986 |
| Docket Number | No. 72549,72549 |
| Parties | DAVIS v. The STATE. |
| Court | Georgia Court of Appeals |
William M. Shurling III, Macon, for appellant.
Willis B. Sparks III, Dist. Atty., Graham A. Thorpe, Asst. Dist. Atty., for appellee.
Appellant was convicted of two counts of rape, and he appeals.
1. Appellant contends the trial court erred by not granting his motion to sever the first charge of rape from the second rape and kidnapping charges. Appellant contends that under the decision in Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975), it is mandatory that the trial judge, upon motion of the defendant, order separate trials when the offenses are joined solely on the ground that they are of the same or similar character.
In the instant case the first rape charged against appellant occurred on February 20, 1985 in his brother's home. The second rape charged against appellant occurred on June 4, 1985 in an area behind the victim's home. Two different victims were involved and the rapes were unrelated in time or place. In Dingler, supra, our Supreme Court adopted the American Bar Association Standards on Joinder of Offenses. Those standards provide: "Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." ABA Standards Relating to the Administration of Criminal Justice, p. 289 (1974). On severance, the Standards provide: "(a) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses." ABA Standards, supra, p. 291. Dingler, supra at 464, 211 S.E.2d 752.
In the instant case the evidence showed that in both incidents, appellant assaulted women with whom he had seemingly pleasant social connections. After spending time with the women, appellant initiated his attacks by asking the victim to let him "hold" them. When they refused, he forcibly removed them to another location nearby, and when they screamed or fought, he placed his hand over the victims' mouth and nose so they could not breathe. In neither instance was a weapon used nor were overt threats made; rather, appellant relied solely on brute strength to subdue his victims.
In Mack v. State, 163 Ga.App. 778, 779 (1), 296 S.E.2d 115 (1982), we recognized the rule that when offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. We went on to state: Id. at 778-779, 296 S.E.2d 115. Since the evidence here showed a similar modus operandi, we find no abuse of the trial court's discretion in denying appellant's motion for severance of the offenses.
2. Appellant contends the court erred by allowing evidence of a prior similar transaction. The prior incident occurred when appellant met a young woman that he knew at a party. She asked appellant for some marijuana and when they went to appellant's car to get the marijuana, appellant drove to a secluded area about three or four miles from the party's location. When he stopped the car he told the woman he...
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