Jones v. State
| Decision Date | 22 November 1983 |
| Docket Number | 66652,Nos. 66643,s. 66643 |
| Citation | 311 S.E.2d 485,169 Ga.App. 4 |
| Parties | JONES v. The STATE. MARLOW v. The STATE. |
| Court | Georgia Court of Appeals |
David Jones, Sylvester, for appellant in No. 66643.
Stanley R. Durden, Jefferson, for appellant in No. 66652.
Timothy G. Madison, Dist. Atty., Larry Duttweiler, Asst. Dist. Atty., for appellee.
Appellants Ricky Jones and Eddie Marlow were jointly indicted for burglary and rape. Jones pled guilty to the burglary count. Thereafter, appellants were tried jointly before a jury on the remaining counts and found guilty as charged. Appellants bring these appeals following the denial of their motions for new trial.
The evidence of record, construed in a light most favorable to the state, shows that the crimes alleged in the indictment took place on August 9, 1981 at the single-bedroom mobile home of the victim. Appellants arrived unannounced at the victim's home at approximately 9:00 p.m. The victim has not seen Jones for nearly two years; Marlow was a stranger to her. After watching television and conversing for awhile, Jones began to make sexual advances toward the victim. She resisted, became frightened and began to scream; thereupon, appellants left. Shortly thereafter, Jones broke into the mobile home through a window and opened the living room door for Marlow. Appellants grabbed the victim around her arms and shoulders and placed their hands across her mouth and throat to muffle her screams. While Marlow held her down, Jones then removed her clothing, as well as a tampon from her vagina, and forced sexual intercourse upon her on the living room floor. The victim testified that during Jones' assault she observed Marlow carry a cannister of nickles out of her home. Following Jones' assault, Marlow carried the victim into her bedroom where he proceeded to force himself upon her. The victim testified that during Marlow's assault Jones removed two stereo speakers from her bedroom. After appellants had left the victim's home, she noticed that her television set had also been taken. Appellants later sold the television set to a relative of Marlow.
1. Appellant Jones' first and fourth enumerations of error challenge the sufficiency of the evidence to support the verdict of guilty as to the rape charge. From the evidence presented at trial, we find that any rational trier of fact could have found Jones guilty of rape beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Jones next cites as error the trial court's denial of his motion of autrefois convict. The ground for this motion, as appears from the record here, was that since Jones had pled guilty to the burglary count of the indictment and the state had not requested that the rape charge be tried separately, the state was precluded from prosecuting Jones on the rape charge because both offenses arose out of the same conduct.
A motion for autrefois convict is a plea in bar by a criminal defendant to an indictment that he has been formerly convicted of the same crime. Black's Law Dictionary 170 (4th ed. 1968). Burglary and rape are two separate and distinct crimes. Groves v. State, 152 Ga.App. 606 (2), 263 S.E.2d 501 (1979). Therefore, Jones' guilty plea to the burglary charge did not operate as a "conviction" of the rape charge so as to bar the prosecution thereof. See also Echols v. State, 167 Ga.App. 307 (1), 306 S.E.2d 324 (1983). Moreover, since the crimes here were " 'based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan' [Cit.]" (Coker v. State, 234 Ga. 555, 558, 216 S.E.2d 782 (1975), revd. on other grounds, Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)), their joint prosecution was mandated unless the trial court ordered them tried separately in the interest of justice. OCGA § 16-1-7 (Code Ann. § 26-506). Jones made no motion to sever prosecution of the charges against him, and his argument that the state was required to sever prosecution thereof before accepting his guilty plea has no basis in law. Finally, Jones' contention that his trial should have been severed from the trial of Marlow is raised for the first time here on appeal and thus will not be considered. Jones' second and third enumerations are wholly without merit.
3. In his fifth enumeration of error, Jones takes the position that OCGA § 16-6-1 (Code Ann. § 26-2001), the rape statute, is burden-shifting and thus unconstitutional. This position has no merit. Tucker v. State, 243 Ga. 683 (1), 256 S.E.2d 365 (1979).
4. In his sixth enumeration Jones contends that the evidence tendered by him regarding his past sexual encounters with the victim was proper evidence and should have been admitted at trial. See OCGA § 24-2-3 (Code Ann. § 38-202.1). The record, however, discloses that this evidence was admitted, making this enumeration meritless.
5. Jones' first enumeration of error asserts that evidence was improperly tendered at trial as to the burglary charge (to which he had previously pled guilty) and that this evidence "tainted" the trial and was not cured by the trial court. We do not agree. On the prosecution of Jones for rape, evidence which showed that he also committed burglary was admissible under the facts in this case as part of the res gestae of the commission of the crime of rape. See Fuller v. State, 228 Ga. 546 (1), 186 S.E.2d 888 (1972). See generally Jones v. State, 167 Ga.App. 847 (3), 307 S.E.2d 735 (1983).
6. Appellant Marlow's first enumeration assigns error to the admission into evidence of a statement confessing the subject burglary that Jones had made to the police after his arrest. While Marlow relies on several grounds in support of this enumeration on appeal, we will confine our discussion here to the grounds raised at trial. See McCullough v. State, 162 Ga.App. 866 (2), 293 S.E.2d 455 (1982). One objection made at trial to Jones' statement is as follows: Marlow also objected on the ground that the reading of Jones' statement by the police officer who had taken the statement violated his Sixth Amendment right to...
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