Glass v. State, A02A0195.

• Decision Date: 03 May 2002
• Docket Number: No. A02A0195.,A02A0195.
• Citation: 255 Ga. App. 390,565 S.E.2d 500
• Parties: GLASS v. The STATE.
• Court: Georgia Court of Appeals

565 S.E.2d 500

255 Ga. App. 390

GLASS v. The STATE.

No. A02A0195.

Court of Appeals of Georgia.

May 3, 2002.

Reconsideration Denied May 16, 2002.

Certiorari Denied September 6, 2002.

Louise T. Hornsby, Atlanta, for appellant.

Patrick H. Head, Dist. Atty., Ann B. Harris, Amy H. McChesney, Asst. Dist. Attys., for appellee. JOHNSON, Presiding Judge.

A jury found Bruce Lamar Glass guilty of rape and aggravated sexual battery. This out-of-time appeal was filed following our opinion in Glass v. State.¹ The appeal alleges (1) the evidence was insufficient to support the verdict, (2) the trial court erred in admitting similar transaction evidence, (3) the trial court erred in its similar transaction charge, (4) the trial court erred in refusing to allow Glass to present evidence of the victim's first offender plea, (5) the trial court erred in denying Glass' Batson² challenge and in improperly conducting a hearing on the issue, (6) a mistrial should have been granted when a state's witness interjected racial remarks in the presence of the jury, (7) a mistrial should have been granted when a state's witness placed Glass' character into evidence, (8) the trial court erred in allowing the state to question Glass' character witnesses about an incident in another state, (9) the state's attorney committed seven instances of prosecutorial misconduct, and (10) Glass received ineffective assistance of counsel. Because each of these enumerations of error lacks merit, we affirm Glass' convictions.

1. Glass challenges the legal sufficiency of the evidence. On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence; moreover, this Court only determines the legal sufficiency of the evidence; we do not weigh the evidence or determine the credibility of witnesses.³ Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve, and as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state's case, the jury's verdict will be upheld. ⁴ Viewed in the light most favorable to support the verdict, the evidence shows that the 16-year-old victim worked full time at a car wash. Glass, a 34-year-old male, was the manager who hired her. On March 3, 1997, the victim agreed to accompany Glass to his new home in Cobb County to unpack boxes until 1:00 p.m. Glass offered her and her co-worker $50 each for a few hours work. Once en route, however, Glass announced that the co-worker needed to rest before working late that evening and dropped the co-worker off at his home.

Though the victim felt uncomfortable, she remained in Glass' car and continued with the plan to work at Glass' residence. He drove more than an hour to an area unfamiliar to her. Upon arrival, the victim unpacked kitchen items as agreed. She then began unpacking items in the bedroom closet. As the victim unpacked these boxes, Glass began to unbutton her outer shirt. The victim objected, and Glass stopped. Later, however, Glass began rubbing the victim's shoulders. Instead of stopping when the victim asked him to stop, he touched the victim's breast under her shirt. He then removed his hands, and the two engaged in small talk.

Glass encouraged the victim to sit closer to him, told her to relax, and intermittently rubbed her shoulders as they chatted. Then, he pushed the victim facedown on the bed and continued to rub her shoulders over her protests. Glass unclasped the victim's bra and silenced her screams by choking her, again instructing her to relax and remain calm to avoid injury. Glass then thrust his hand into the victim's jeans and forced his fingers into the victim's vagina. After this, Glass allowed the victim to sit up, but he made her lie down on his chest. He stroked her, telling her she was soft and pretty. Because Glass stands six feet five inches and weighs approximately 210 pounds, the victim feared for her life.

When the pager attached to the victim's jeans displayed 1:00 p.m., she reminded Glass it was time to go. At this point, Glass pushed her down, took her pants off, ripped off her underwear, and penetrated her vagina with his penis. The victim struggled, but Glass was too strong. After he ejaculated, Glass insisted that the victim take a "good" shower. He provided her with soap and watched her as she complied.

A medical examination revealed substantial physical evidence of the rape. Vaginal swabs revealed the presence of spermatozoa. DNA testing identified Glass as its source. The examining physician also observed recent lacerations, consistent with digital or penile penetration, both at the entrance to and inside the victim's vagina. The doctor testified that in his experience such injuries are rare and almost certainly indicate the use of force. He also noted a fresh bruise to the victim's left buttock.

The state produced additional evidence of force, introducing the victim's torn panties and broken pager chain. And, the detective who took the original rape report corroborated the victim's testimony. This detective observed the "hysterical" and frightened victim crying "uncontrollably," and noted that her face and neck appeared red and blotchy. The detective saw a fresh injury to the victim's neck, an abrasion consistent with physical pressure applied to the chain she wore.

Initially, Glass denied any sexual contact with the victim. At trial, however, Glass recanted his prior statements, claiming he was scared because he was an African-American accused of raping a Caucasian woman. He testified that the sexual encounter with the victim was consensual, and he denied having rough sex with the victim. However, he could not explain the victim's injuries or emotional state.

To rebut Glass' claim of consent, the state admitted evidence of a subsequent similar transaction. While on bond awaiting trial for the victim's rape, Glass met and briefly dated Lorna Taylor. Taylor, an army sergeant who was visiting Marietta before assuming a new post, testified that Glass raped her in his master bedroom on September 14, 1997, 11 days after the incident at issue in this case. When she resisted his advances, Glass told her to "just shut up ... and just relax." Afraid she would be injured or killed, she submitted without a struggle to Glass' verbal and physical assault. During the attack, Glass told Taylor she was soft, and he digitally penetrated her vaginal area. After he ejaculated, he forced her to take a bath and watched her do so, giving her Tone soap and telling her "to wash down there."

Once Glass allowed Taylor to leave, she immediately telephoned the police. A detective testified that she appeared to be very afraid. The detective also found corroborating evidence in Glass' home. He located the bar of Tone soap in the bathtub, its empty wrapper in the sink. In addition, the detective photographed the box of Epsom salts on the bathroom counter, a portion of which Glass had initially added to the bath water, along with its residue in the bathtub.

During a pretrial telephone conversation with an investigator, Glass asserted, "[I]t's a conspiracy, it's blackmail. I confided in her and she is blackmailing me because she wanted me to drive her to Virginia." He testified at trial that his sexual relation with Taylor was consensual.

While Glass challenges the credibility of the victim and Taylor by pointing out inconsistencies in their testimony, it is not the function of an appellate court to weigh the evidence, determine the credibility of the witnesses, or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged.⁵ Instead, the evidence must be viewed in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.⁶

A person commits rape when he has carnal knowledge of a female forcibly and against her will.⁷ Aggravated sexual battery is committed when a person intentionally penetrates with a foreign object other than the sexual organ of a person the sexual organ of another without the consent of that person.⁸ In this case, the credibility issues were resolved adversely to Glass by the jury, and we find the evidence was sufficient to authorize a rational trier of fact to find Glass guilty beyond a reasonable doubt of rape and aggravated sexual battery.⁹ 2. Glass contends the trial court erred in admitting evidence of the incident with Taylor, which the trial court ruled a subsequent similar transaction. Specifically, he argues that the incident did not satisfy the standard set forth in Williams v. State.¹⁰ We find no error.

In Williams, the Supreme Court detailed three affirmative showings which the state must make before similar transaction evidence can be introduced: (1) identify an appropriate purpose for the introduction of the independent offense or act, (2) show a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter, and (3) present competent evidence that the defendant committed the independent offense or act.¹¹ The decision to admit a similar transaction into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.¹²

Glass first asserts that the Taylor incident was not admissible because it placed his character into issue. However, it is well established that evidence of an independent offense or act may be admitted to show a defendant's bent of mind, course of conduct, motive, intent, or lack of mistake.¹³ The state offered evidence of the Taylor incident to establish Glass' course of conduct, particularly to prove the bent of mind and intent necessary to overcome the defense of consent, and to corroborate the victim's testimony. These are permissible purposes to...