McGuire v. State, A03A2534.

• Decision Date: 30 March 2004
• Docket Number: No. A03A2534.,A03A2534.
• Citation: 598 S.E.2d 55,266 Ga. App. 673
• Parties: McGUIRE v. The STATE.
• Court: Georgia Court of Appeals

266 Ga. App. 673

598 S.E.2d 55

266 Ga.App. 673

McGUIRE v. The STATE.

No. A03A2534.

Court of Appeals of Georgia.

March 30, 2004.

David D. Bishop, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

BARNES, Judge.

On July 20, 2000, Fred McGuire attacked the victim as she walked near her trailer, dragged her to a more deserted area of the trailer park where he forced her to the ground, beat her and inserted his finger in her vagina. McGuire ran away when a resident of a nearby trailer heard dogs barking and came outside to look around. McGuire was related to the victim's husband, and she had known McGuire since childhood. The victim reported the assault the next day, and McGuire was arrested and indicted for aggravated assault with intent to rape, aggravated sexual battery, and kidnapping. Following a jury trial, he was convicted on all counts. After the denial of his motion for new trial, he appeals, and enumerates as error the trial court's charge on assault, its failure to charge on asportation, its admission of similar transaction evidence, and its failure to merge the kidnapping charge with the aggravated assault with intent to rape charge. McGuire also maintains that his trial counsel was ineffective. Upon review, and discerning no error, we affirm his conviction.

1. In two enumerations of error, McGuire contends that the trial court erred in instructing the jury. According to McGuire, the trial court erred in charging the jury on aggravated assault in a manner not alleged in the indictment. McGuire also argues that the trial court erred in failing to give a charge on asportation. We address each alleged error in turn.

(a) There are two ways to commit an assault: when a person "[a]ttempts to commit a violent injury to the person of another," OCGA § 16-5-20(a)(1) and when a person "[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." Id. at (a)(2). "[A]ggravated assault has two essential elements: (1) that an assault (as defined in [OCGA § 16-5-20]) was committed on the victim; and (2) that it was aggravated by (a) an intention to murder, to rape, or to rob, or (b) use of a deadly weapon...." Merrell v. State, 162 Ga.App. 886, 887(2), 293 S.E.2d 474 (1982). McGuire asserts that the trial court erred in charging the jury on the two subsections, when the indictment alleged only one manner of aggravated assault. Specifically, he argues, that "[t]he indictment charged appellant with assault by beating and choking the victim. A reasonable apprehension of receiving an immediate violent injury was not part of the indictment."

The indictment charged McGuire with aggravated assault with the intent to rape in that he "did unlawfully commit an assault upon the person of [the victim], a female, by beating her about the head and body with his hands and fists, all with intent to have carnal knowledge of [the victim], forcibly and against her will."

The trial court charged the jury as follows:

Count One charges the defendant with aggravated assault with the intent to rape. An assault is an attempt to commit a violent injury to the person of another or an act which places another person in reasonable apprehension of immediately receiving a violent injury. A person commits the offense of aggravated assault when that person assaults another person with the intent to rape. To constitute an assault, actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person coupled with the apparent ability to commit that injury or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.

Contrary to McGuire's argument,

[t]he indictment did not and need not, however, specify the manner in which the defendant committed the simple assault, when that is a lesser included offense within the greater offense of aggravated assault. Instead, an indictment for aggravated assault should, as it did in this case, allege the aggravating aspect of the simple assault. This indictment was sufficient to put [McGuire] on notice that he could be convicted for aggravated assault if he committed a simple assault in either manner contained in the simple assault statute, so long as the State proved that he did so by [the intention to rape]. The two charged methods of committing simple assault, as an element of aggravated assault, did not provide an improper basis for the jury to convict [McGuire] of aggravated assault. The trial court did not charge a separate, unalleged method of committing aggravated assault, but simply defined both methods of committing simple assault, a lesser included offense. Because the jury's charge did not authorize a conviction in a manner other than that alleged in the indictment, the charge was not erroneous.

(Punctuation and footnotes omitted.) Simpson v. State, 277 Ga. 356, 589 S.E.2d 90 (2003). Thus, the trial court did not err in its jury charge on assault.

(b) McGuire's contention that the trial court erred in failing to charge the jury on asportation is also meritless. McGuire essentially argues that the trial court erred in failing to define the term "asportation" in its charge on kidnapping. McGuire complains that, even though the term was not used, the definition of asportation was essential to "provide the jury with proper guidelines for determining guilt or innocence under the facts of this particular case."

In its charge on kidnapping, the trial court explained that "a person commits the offense of kidnapping, which is count two of the indictment, when he abducts or steals away any person without lawful authority or warrant or holds such person against his or her will." We discern no error.

The trial court charged the language of the kidnapping statute. See OCGA § 16-5-40(a). "The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence." McMath v. State, 253 Ga.App. 523, 524, 559 S.E.2d 544 (2002). We can find no authority, nor does McGuire cite such authority, supporting his contention that the trial court must use, and further explain, the term asportation. Further, our review of McGuire's request to charge reveals that he did not request any additional charges on kidnapping to prevent any confusion on the requirements of asportation. "[McGuire] cannot complain about the trial court's failure to give an unrequested instruction on a collateral issue, especially when the omission is not clearly harmful and erroneous as a matter of law." Schubert v. State, 160 Ga.App. 227, 228(2), 286 S.E.2d 514 (1981).

2. McGuire next complains that the trial court erred in admitting evidence of similar transactions. He argues that the transactions were not sufficiently similar to the present one, and that the offenses were improperly admitted to show intent.

We note preliminarily that,

[w]hile [McGuire] objected to the introduction of this evidence during the pretrial hearing conducted pursuant to Uniform Superior Court Rule 31.3(B), [he] failed to object to the testimony of the witness at trial and therefore has failed to preserve [his] objection for review. The rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it.

(Citation and punctuation omitted.) Glass v. State, 257 Ga.App. 662(a), 572 S.E.2d 31 (2002).

Pretermitting the failure to preserve the objection, the evidence was admissible for permissible purposes. The similar transactions were a 1978 conviction for aggravated assault with intent to rape, and a 1979 conviction for rape, kidnapping and aggravated sodomy. McGuire was in prison from 1979 until 1996. The State argued that the similar transactions were being offered to show intent and bent of mind, and the trial court admitted them for those purposes. McGuire argues that the crimes were not similar because the prior offenses involved weapons and the present case did not. He maintains that the present case is also dissimilar in that it involved an acquaintance and the priors involved strangers. McGuire also argues that intent is not relevant in this case and thus, the similar transactions are irrelevant to show intent.

Evidence of similar transactions may be admitted if there is sufficient evidence that the accused committed the offense or act and that there is a sufficient connection or similarity between the offense and the crime charged, so that "proof of the former tends to prove the latter." Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991). The independent act does not have to be identical to the crime charged. Wells v. State, 237 Ga.App. 109, 113(4), 514 S.E.2d 245 (1999). "The proper focus is on the similarity, not the differences, between the separate crimes and the crime in question." Wayne v. State, 269 Ga. 36, 39(3), 495 S.E.2d 34 (1998). "Particularly in the area of sexual offenses, the admissibility of similar transaction...