Edmonson v. State

• Decision Date: 15 March 1994
• Docket Number: No. A94A0405,A94A0405
• Citation: 212 Ga.App. 449,442 S.E.2d 300
• Parties: EDMONSON v. The STATE.
• Court: Georgia Court of Appeals

Page 300

442 S.E.2d 300

212 Ga.App. 449

EDMONSON v. The STATE.

No. A94A0405.

Court of Appeals of Georgia.

March 15, 1994.

J. Reese Franklin, Nashville, for appellant.

Robert B. Ellis, Jr., Dist. Atty., Timothy L. Eidson, Asst. Dist. Atty., for appellee.

ANDREWS, Judge.

Edmonson was charged in a seven-count indictment with kidnapping, false imprisonment, rape, aggravated sodomy, aggravated assault with a deadly weapon, aggravated assault with intent to rape, and possession of a knife during the commission of a crime. He was found guilty by a jury on all counts. The trial court merged the false imprisonment count into the kidnapping count, merged the aggravated assault with intent to rape count into the rape count, and entered judgment and sentence on the convictions for kidnapping, rape, aggravated sodomy, aggravated assault with a deadly weapon, and possession of a knife during the commission of a crime. Edmonson appeals from the judgment entered on the convictions.

All of the counts of the indictment were based on evidence that Edmonson abducted his victim at knifepoint, transported her to another location, and sexually assaulted her. The victim testified that while she was doing laundry at a laundromat, Edmonson grabbed her from behind around the neck, threatened her with a knife, and forced her to drive her car to a motel room, where against her will Edmonson forcibly placed his penis to her mouth and raped her. Edmonson testified that he did not attack the victim with a knife or otherwise assault or abduct her. He admitted he had sexual relations with the victim in the motel room, but claimed she voluntarily accompanied him to the room and that the sexual relations were consensual. Edmonson's knife was identified by the victim and admitted into evidence. Edmonson testified he had the knife with him during the events at issue because he used it in his work.

1. Edmonson claims the trial court erred in overruling his objection to expert testimony presented by the State from a registered nurse, who also acted as a rape counselor. The nurse testified that she had counseled 20 to 30 victims of rape, including the present victim, and that in her experience she observed that rape victims exhibited certain common patterns of behavior as a result of being raped. The nurse and other witnesses testified as to behavior of the victim they observed after she claimed to have been raped. The behavior of the victim observed by the witnesses was consistent with some of the behavior patterns the nurse testified existed in other rape victims. The clear purpose of the State in introducing the nurse's expert opinion testimony was to produce evidence from which the jury could conclude that since the present victim displayed behavior common to other rape victims, she was telling the truth when she testified that Edmonson raped her.

The only objection to the expert opinion which the defendant raised at trial and argues on appeal is that it invaded the province of the jury on the ultimate issue of whether or not the victim was raped by Edmonson. ¹ The nurse offered an opinion as to the existence of certain typical patterns of behavior exhibited by victims of rape, and she testified as to behavior she observed in the present victim. Pretermitting whether the opinion was otherwise admissible, this did not amount to an expert opinion as to whether the victim had been raped. See Remine v. State, 203 Ga.App. 30, 31, 416 S.E.2d 326 (1992); Hall v. State, 201 Ga.App. 626, 627, 411 S.E.2d 777 (1991); Cooper v. State, 200 Ga.App. 560, 561, 408 S.E.2d 797 (1991); Gordon v. State, 210 Ga.App. 224, 226-227, 435 S.E.2d 742 (1993); compare Allison v. State, 256 Ga. 851, 853, 353 S.E.2d 805 (1987); Smith v. State, 259 Ga. 135, 138, 377 S.E.2d 158 (1989); Sims v. State, 260 Ga. 782, 784, 399 S.E.2d 924 (1991); McCartney v. State, 262 Ga. 156, 159, 414 S.E.2d 227 (1992). The trial court did not err in overruling the objection on this basis.

2. Edmonson argues it was error for the trial court to give an "Allen" charge (see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896)) after the jury had been deliberating for approximately two-and-one-half hours and informed the court its vote was situated at nine to three on all counts. After giving the charge, the trial court asked if there were any objections and defense counsel objected on the basis that an "Allen " charge should only be given with the general instructions before the jury commences deliberation.

On appeal, Edmonson argues that we should adopt the position of the Commentary to the A.B.A. Standards for Criminal Justice supporting his objection (see Harris v. State, 263 Ga. 526, 528, 435 S.E.2d 669 (1993)), and further argues that authority to the contrary such as Spaulding v. State, 232 Ga. 411, 413-414, 207 S.E.2d 43 (1974) should be overruled. Giving an "Allen " charge after the jury has begun its deliberations has been approved in numerous decisions of the Georgia Supreme Court and this court. Black v. State, 255 Ga. 668, 670-671, 341 S.E.2d 436 (1986); Kilpatrick v. State, 255 Ga. 344, 345, 338 S.E.2d 274 (1986); Spaulding, supra; Tucker v. State, 208 Ga.App. 224, 226, 430 S.E.2d 84 (1993). Without addressing the merits of these contentions, we find no error, since this court is without authority to overrule decisions of the Georgia Supreme Court which control this issue and must be followed. See Harden v. Burdette, 204 Ga.App. 733, 735, 420 S.E.2d 626 (1992).

3. Edmonson contends the trial court erred by not merging both aggravated assault charges and the kidnapping charge into the rape charge as a matter of fact pursuant to the substantive bar against double jeopardy set forth by OCGA § 16-1-7(a)(1). First, the trial court did, sua sponte, merge the aggravated assault with intent to rape charge into the rape charge, so Edmonson's contention in this regard is moot. Secondly, Edmonson did not raise in the trial court (either before, during or after the trial) the claims that the aggravated assault with a deadly weapon and kidnapping counts should have been merged with the rape count. Accordingly, these enumerations are not properly before us for appellate review. LeGallienne v. State, 180 Ga.App. 108, 111, 348 S.E.2d 471 (1986); compare McClure v. State, 179 Ga.App. 245, 246, 345 S.E.2d 922 (1986) (claim that the substantive bar against double jeopardy was violated was not waived when raised in the trial court after close of the evidence). To the extent Redding v. State, 188 Ga.App. 805, 374 S.E.2d 339 (1988), stands for the proposition that this court will review a claim asserting violation of the substantive bar against double jeopardy which was not raised in the trial court, it is overruled. See id. at 806, 374 S.E.2d 339 (Beasley, J., dissenting).

Nevertheless, we note that under the facts of the present case the victim was kidnapped at knifepoint and then raped at another location. The two offenses were separate and did not merge. Allen v. State, 233 Ga. 200, 202-203, 210 S.E.2d 680 (1974); compare State v. Sallie, 206 Ga.App. 732, 735, 427 S.E.2d 11 (1992); Fredrick v. State, 181 Ga.App. 600, 353 S.E.2d 41 (1987). There was also evidence that, subsequent to completing the offense of rape, Edmonson again threatened the victim with the knife; thus these two offenses were separate and did not merge as a matter of fact. Ellis v. State, 181 Ga.App. 826, 827-828, 354 S.E.2d 15 (1987); see Sylvester v. State, 168 Ga.App. 718, 310 S.E.2d 284 (1983).

4. Edmonson claims the...