McBee v. State

• Decision Date: 06 August 1997
• Docket Number: No. A97A1565,A97A1565
• Citation: 228 Ga.App. 16,491 S.E.2d 97
• Parties: , 97 FCDR 3102 McBEE v. The STATE.
• Court: Georgia Court of Appeals

Page 97

491 S.E.2d 97

228 Ga.App. 16, 97 FCDR 3102

McBEE v. The STATE.

No. A97A1565.

Court of Appeals of Georgia.

Aug. 6, 1997.

Roland L. Enloe, Jr., Ringgold, Christopher A. Townley, Rossville, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

Appellant Michael McBee appeals his October 13, 1995 conviction for rape and aggravated sodomy. For the reasons outlined below, we affirm.

"On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463[, 464](1), 393 S.E.2d 737 [(1990)]." Wells v. State, 208 Ga.App. 298, 299(1), 430 S.E.2d 611 (1993). Further, the admission of evidence is a matter which rests largely within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Samuels v. State, 223 Ga.App. 275, 477 S.E.2d 414 (1996); Hestley v. State, 216 Ga.App. 573, 455 S.E.2d 333 (1995); Bell v. State, 203 Ga.App. 109, 416 S.E.2d 344 (1992).

In the case sub judice, the evidence showed that appellant met the victim at a Chattanooga, Tennessee lounge in August 1994. Approximately four weeks later, on September 24, 1994, appellant and the victim met again by chance at the same lounge and danced together three times. As the victim was leaving the lounge at approximately 2:00 the next morning, appellant approached her in the parking lot and asked her for a ride home, saying that his ride had already left. Since appellant's home in Ringgold, Georgia, was on the victim's way home to Dalton, Georgia, she agreed to give appellant a ride.

Upon arriving at appellant's home, the victim asked to use appellant's bathroom. While she was using the bathroom, appellant walked in; she immediately told him to leave, which he did. However, as the victim walked out of the bathroom, appellant, who had removed his shirt, grabbed her and pulled her into his bedroom, which was adjacent to the bathroom. Appellant demanded that she take off her clothes; the witness complied because he was bigger, stronger, and she was afraid of him. Appellant proceeded to rape and anally sodomize the victim.

During the act, however, someone rang the doorbell to appellant's duplex; appellant stopped his assault, put on his jeans, and answered the door. While appellant and his male visitor talked in the living room, the victim put on some of her clothes and rushed out the front door, past both men. The victim drove to a Chevron station and immediately called the police. The victim was interviewed by police officers, directed the officers to appellant's duplex, and was examined at the local hospital. During the medical examination, which occurred at approximately 5:15 a.m. the day of the assault, a nurse took a photograph of a bruise on the victim's shoulder; the photograph was introduced as evidence. The nurse testified that the victim was distraught, angry, and tearful; diazepam (commonly known as Valium) was prescribed to calm her down.

Detective Vic Wells of the Catoosa County Sheriff's Department interviewed the victim before the medical examination and testified that the victim "was very upset, she was crying, she was scared, she was mad, she didn't know what to do, and she wanted help." Detective Wells also noticed the bruise on the victim's shoulder. The victim told Detective Wells that, in her haste to flee appellant's home, she had left her belt, panties, and a glass in appellant's bedroom. Detective Wells contacted a magistrate, submitted an affidavit, and secured a search warrant for appellant's duplex; such warrant was executed at approximately 7:50 a.m. the same day. Upon arriving at appellant's duplex, police officers were met by appellant on the porch. The officers told appellant that they had a search warrant, but did not tell him why it had been secured. Even so, an officer testified that appellant spontaneously stated that "if we was [sic] there about the girl that brought him home last night, that he didn't rape her, that they had sex."

During the search, the officers recovered the victim's belt and panties; they also seized photographs of nude and semi-nude women in various sexual poses.

Appellant was arrested a few days later and charged with rape and aggravated sodomy. A hearing on appellant's motion to suppress the seized evidence was held on March 23, 1995; the motion was denied. Appellant was tried by a jury in October 1995 and convicted on October 13, 1995. He was sentenced to life imprisonment for the rape and was given a consecutive 20-year sentence for aggravated sodomy. Appellant's motion for a new trial was denied on April 17, 1996, and he timely appealed.

1. In the first enumeration of error, appellant asserts that the trial court erred in allowing the State to introduce as similar transactions evidence of appellant's conviction for criminal trespass and evidence of a non-sexual dispute with a former girl friend. For the reasons set forth below, there was no error.

Georgia's courts have long held that evidence of a separate crime unfairly places a defendant's character in issue and therefore is inadmissible. Williams v. State, 261 Ga. 640, 642, 409 S.E.2d 649 (1991). However, there are exceptions to the rule, so that before any evidence of independent offenses or acts may be admitted, a hearing must be held during which the State must make three affirmative showings as to each independent act it seeks to admit. Id. at 642, 409 S.E.2d 649. "The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of admissibility." Id. at 642(2)(b). Such appropriate purposes include proving malice, intent, motive, plan, scheme, course of conduct, or bent of mind. Id. at 642, n. 2, 409 S.E.2d 649; Johnson v. State, 242 Ga. 649, 653, 250 S.E.2d 394 (1978); O'Neal v. State, 170 Ga.App. 637, 318 S.E.2d 66 (1984). "The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is 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." Williams v. State, 261 Ga. at 642(2)(b), 409 S.E.2d 649; see also Davis v. State, 249 Ga. 309, 311, 290 S.E.2d 273 (1982).

"Similarity between the charged crime and the extrinsic crime is an important factor pertinent to a determination of the admissibility of the extrinsic crime. However, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue in determining the admissibility of evidence of other crimes is not mere similarity but relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic offense is offered, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar." (Citation and punctuation omitted.) Ward v. State, 262 Ga. 293, 295(2), 417 S.E.2d 130 (1992), quoting Felker v. State, 252 Ga. 351, 359, 314 S.E.2d 621 (1984); Farley v. State, 265 Ga. 622, 624, 458 S.E.2d 643 (1995); Wells v. State, 208 Ga.App. at 302, 430 S.E.2d 611.

Further, "[w]here forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other." (Citations and punctuation omitted.) Moore v. State, 207 Ga.App. 412, 415(1)(a), 427 S.E.2d 779 (1993). Particularly in the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed. Wells v. State, 208 Ga.App. at 300, 303, 430 S.E.2d 611 and cases cited therein.

Evidence of an earlier assault on a woman is "material [to] the issue of consent or the lack thereof, and [has] a direct bearing on appellant's bent of mind." O'Neal v. State, 170 Ga.App. at 638(1), 318 S.E.2d 66; see also Thomas v. State, 234 Ga. 635, 636, 217 S.E.2d 152 (1975); Hunt v. State, 233 Ga. 329, 211 S.E.2d 288 (1974). Such evidence would tend to rebut appellant's claim of consent by establishing that appellant has a propensity to initiate or continue an encounter without a woman's consent and, in fact, against her explicit request to stop. See Farley v. State, 265 Ga. at 623-624, 458 S.E.2d 643 and cases cited therein; see also Sudlow v. State, 140 Ga.App. 146, 147, 230 S.E.2d 106 (1976) (evidence of a previous assault "is justifiable rebuttal evidence where the defendant admits the transaction but denies the coercive element"). Such evidence also corroborates the victim's testimony that appellant acted in the manner charged. Touchton v. State, 210 Ga.App. 700, 701, 437 S.E.2d 370 (1993). "[R]elevant 'other transactions' evidence is admissible notwithstanding its tendency to discredit the character of the defendant." Farley v. State, 265 Ga. at 623, 625, 458 S.E.2d 643; see also O'Neal v. State, 170 Ga.App. at 638, 318 S.E.2d 66.

In the case sub judice, a witness testified that she had a brief relationship with appellant, but that she had broken up with him. Shortly thereafter, appellant arrived unannounced at her apartment in the middle of the night; he said he wanted to talk, and the witness let him in. Appellant shoved the witness...