Krauss v. State, No. A03A1877.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: BLACKBURN, Presiding.
• Citation: 263 Ga. App. 488,588 S.E.2d 239
• Decision Date: 28 August 2003
• Docket Number: No. A03A1877.
• Parties: KRAUSS v. The STATE.

588 S.E.2d 239
263 Ga. App. 488

KRAUSS
v.
The STATE

No. A03A1877.

Court of Appeals of Georgia.

August 28, 2003.

Reconsideration Denied October 2, 2003.

588 S.E.2d 240

Patrick C. Kaufman, Brunswick, for appellant

Stephen D. Kelley, Dist. Atty., Susan B. Thornton, Asst. Dist. Atty., for appellee.

BLACKBURN, Presiding Judge.

Following his conviction by a jury of sexual assault against a person in custody, Dennis Krauss appeals, arguing that (1) the evidence was insufficient to support his conviction, and that the trial court erred in (2) instructing the jury, and (3) allowing the admission of hearsay testimony. For the reasons set forth below, we affirm.

1. Krauss argues that the evidence was insufficient to allow a rational trier of fact to find him guilty beyond a reasonable doubt of sexual assault against a person in custody. We disagree.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption

588 S.E.2d 241

of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia.¹ Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State's case, the jury's verdict will be upheld

Reeves v. State.²

Viewed in this light, the record shows that on December 5, 1999, Krauss, a uniformed officer with the police department, was dispatched to the trailer home of the victim after she called 911. When Krauss arrived, the victim told him that her husband had hit her and that she wanted her husband to leave. Krauss, however, asked the [263 Ga. App. 489] victim to go with him in the police car. In the car, Krauss told the victim that he could take her to jail if he wanted to for domestic violence. The victim testified that at this point she became frightened; she also stated that she believed that she was in custody and was not free to leave. The victim told Krauss that she did not want to go to jail. He told her that they "could take care of it." When asked how she "could take care of it," Krauss told her "[b]y having sex with him." Krauss also said, "We can go to the motel or you can go to jail."

Krauss drove to a motel, got out of the car, and went into the office to get a room. The victim stayed in the police car; when asked why she had done so, she said, "I had to, I was afraid to leave, he, you know, he is a police officer; you don't just leave." She also stated that she thought she was under arrest. After securing a room, Krauss drove the police car around the back of the motel, got out, opened the door for the victim, and pushed her toward the door of the room. Once in the room, Krauss took his gun from his gun belt and told the victim he wanted to have anal sex with her with the gun. The victim refused, started crying, and, at Krauss's order, sat on the bed. Krauss...