Love v. State

• Decision Date: 10 February 1989
• Docket Number: No. 77685,77685
• Citation: 378 S.E.2d 893,190 Ga.App. 264
• Parties: LOVE v. The STATE.
• Court: Georgia Court of Appeals

Page 893

378 S.E.2d 893

190 Ga.App. 264

LOVE v. The STATE.

No. 77685.

Court of Appeals of Georgia.

Feb. 10, 1989.

Edwards & Krontz, Jennifer McLeod, Douglasville, for appellant.

Frank C. Winn, Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Defendant was convicted of the offenses of kidnapping with bodily injury, rape, incest and cruelty to children. A sentence was imposed as to each conviction except the rape conviction, which the trial court determined merged into the conviction for kidnapping with bodily injury. On appeal, defendant contends the evidence did not authorize his conviction of kidnapping with bodily injury and that the offenses of incest and cruelty to children merged into greater offenses. Held:

1. All of the offenses with which defendant was charged arose from a single incident involving the defendant's 15-year-old niece. Defendant accompanied the victim and her sister to a movie. Afterwards the victim and defendant went for a walk. Eventually the two sat on "a concrete block that goes across the creek ..." As the victim sat on the "concrete block" the defendant sat behind her and asked her if she was scared of him. After she answered, "no," he grabbed the back of her head and "jerked [her] down off the concrete block onto the dirt." Defendant then told the victim to take off her clothes or he would kill her. The defendant refused to let the victim up, held her on her throat, and continued telling her to take her clothes off. After the victim took her shorts off, defendant got on top of her and had vaginal intercourse with the victim. Defendant was on top of the victim for about five minutes, during which time he told the victim he would kill her if she ever told anybody. After the defendant got through he permitted the victim to put her clothes back on and leave. An officer with the Douglas County Sheriff's Department testified he investigated the crime scene where a concrete culvert was situated over the creek running underneath the road. (In her testimony, the victim had referred to the culvert as "a concrete block that goes across the creek ...")

Defendant contends his conviction of kidnapping with bodily injury was not authorized because there was no evidence of asportation. "[O]nly the slightest movement of the victim is required to constitute the necessary element of asportation. Brown v. State, 132 Ga.App. 399, 401 (208 SE2d 183)." Helton v. State, 166 Ga.App. 662, 663(1), 305 S.E.2d 592. Further, we find "that there was sufficient evidence introduced by the state at trial to authorize the jury in convicting the [defendant] of kidnapping with bodily injury to the victim." Peck v. State, 239 Ga. 422, 427, 238 S.E.2d 12. See Lassiter v. State, 175 Ga.App. 338, 340(4), 333 S.E.2d 412.

2. "An examination of the elements of rape and incest ... reveals that, as a matter of fact, if [defendant] were found to have engaged in sexual intercourse, a necessary element of rape, with his niece, an incestuous relationship proscribed by [OCGA § 16-6-22], then he must necessarily have committed the crime of incest. Thus, applying the 'alternative test' enunciated in Pryor [v. State, 238 Ga. 698, 234 SE2d 918], it appears that as a matter of fact, in the instant case, the crime of incest is 'included' within the crime of rape, as intended by [OCGA § 16-1-6]." Ramsey v. State, 145 Ga.App. 60, 64(10), 243 S.E.2d 555, reversed on other grounds, 241 Ga. 426, 246 S.E.2d 190. Accordingly, defendant's conviction and sentence on the incest charge must be vacated. McCranie v. State, 157 Ga.App. 110, 111(1), 276 S.E.2d 263. See Sparks v. State, 185 Ga.App. 225, 226(1), 363 S.E.2d 631.

3. We find no merit in defendant's contention that the conviction of cruelty to children merged in the greater crime of rape. "In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime, within the meaning of [OCGA § 16-1-6], [we] 'look to the actual evidence introduced at trial.... [I]f the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under [OCGA § 16-1-6].' [Cit.]" Haynes v. State, 249 Ga. 119, 120(2), 288 S.E.2d 185.

In the case sub judice, the evidence used to establish the offense of cruelty to children was the grabbing and pulling of the victim's hair and holding her throat. The offense of rape, including the element of force, was amply proven by the subsequent events including defendant's threats before and during intercourse to kill the victim. Drake v. State, 239 Ga. 232, 235(1), 236 S.E.2d 748; McNeal v. State, 228 Ga. 633, 635(2), 187 S.E.2d 271. Thus, the jury was authorized to conclude that two separate and distinct offenses were committed. Morris v. State, 179 Ga.App. 228, 229(6), 345 S.E.2d 686; Shab v. State, 187 Ga.App. 513, 370 S.E.2d 775.

Judgment affirmed as to convictions and sentences for the offenses...