McKenzie v. State, s. 76328

• Decision Date: 23 June 1988
• Docket Number: Nos. 76328,76329,s. 76328
• Parties: McKENZIE v. The STATE. AMBLER v. The STATE.
• Court: Georgia Court of Appeals

Page 869

371 S.E.2d 869

187 Ga.App. 840

McKENZIE v. The STATE.

AMBLER v. The STATE.

Nos. 76328, 76329.

Court of Appeals of Georgia.

June 23, 1988.

Rehearings Denied and Dismissed July 15, 1988.

Certioraris Denied Sept. 8, 1988.

Jeffrey L. Grube, Warner Robins, for appellant (case no. 76328).

Stephen N. Hollomon, Warner Robins, for appellant (case no. 76329).

G. Theron Finlayson, Dist. Atty., for appellee.

BENHAM, Judge.

Appellants were named in a 35-count indictment as the perpetrators of a series of burglaries and sexual assaults that occurred between June 28 and July 18, 1986, against four women victims residing in Houston County. McKenzie was convicted and sentenced on 23 of the counts with which he was charged, and Ambler was convicted and sentenced on 22 counts. Each has filed a separate appeal.

1. Ambler contends the evidence presented by the State was insufficient to support the guilty verdicts returned against him, and McKenzie claims error in the denial of his motion for a directed verdict of acquittal. Under Humphrey v. State, 252 Ga. 525(1), 314 S.E.2d 436 (1984), the standard of review when the sufficiency of the evidence is challenged is the same, whether the challenge has as its basis the denial of a motion for directed verdict of acquittal or the denial of a motion for new trial based on insufficient evidence.

The first victim, a 14-year-old, testified that she was blindfolded and awakened in the middle of the night by someone shaking her. She was hit on the face, and two men took turns having sexual intercourse with her against her will. A sharp instrument was held to her throat when she refused to perform acts of sodomy. The victim stated that she was held down on her bed and was not free to leave during the ordeal. Jewelry belonging to the victim's mother was taken. It was determined that the assailants gained entry to the victim's home through a utility room window and the back door, without the victim's permission. In a statement made to police after his arrest, Ambler admitted having had sexual intercourse with the first victim and having taken property from that residence. The physician who examined the victim testified that she had cervical abrasions consistent with a forceful sexual act. The evidence was sufficient to support the jury's conclusion that Ambler was guilty of burglary, rape, aggravated assault, false imprisonment, and theft by taking with regard to the first victim. OCGA §§ 16-7-1; 16-6-1; 16-5-21; 16-5-41; 16-8-2.

The second victim testified that two masked, naked men entered her bedroom in the early morning hours and each had sexual intercourse with her against her will. Her assailants then pulled her into the bathroom, where she was forced to undergo anal intercourse against her will. Her assailants attempted to have her perform an act of oral sodomy, during which her mouth came into contact with the sex organ of one of her assailants. The victim saw a silver blade in the hands of the taller of the two attackers, and it was used to threaten her and her sleeping children, one of whom awakened during the victim's three-hour sexual assault. The victim testified that she suffered bruises on her elbows and knees from the assault. She stated that one assailant was circumcised and the other was not, and she identified fingerless gloves found in a dresser drawer in McKenzie's home as similar to the gloves worn by one assailant, and blue tennis shoes found at McKenzie's home as similar to the shoes put on by the taller assailant after the attack. She testified that the two men drank her beer, smoked her cigarettes, and took her jewelry, as well as funds she had collected on behalf of a deceased fellow employee. The victim stated that she had not given her assailants permission to enter her home, or to have vaginal, anal, or oral intercourse with her. The examining physician testified that his examination of the victim's anal and vaginal areas resulted in findings consistent with "traumatic sex." Ambler's palm print was lifted from the victim's bathroom. In his statement to police, Ambler admitted that he was present in the victim's home, and that his companion sexually assaulted the victim but that he did not. He admitted that funds collected by the victim on behalf of a deceased co-employee were taken. In his statement, McKenzie admitted having had sexual intercourse with the victim but denied taking anything from the house. A police officer testified that Ambler was circumcised and McKenzie was not. The evidence was sufficient to convict both appellants of burglary, rape, aggravated assault, aggravated sodomy, false imprisonment, kidnapping, theft by taking, armed robbery, and possession of a knife during the commission of a crime. OCGA §§ 16-7-1; 16-6-1; 16-5-21; 16-6-2; 16-5-41; 16-5-40; 16-8-2; 16-8-41; 16-11-106; Williams v. State, 178 Ga.App. 581, 344 S.E.2d 247 (1986). However, the jury was not authorized to return a verdict of guilty of sodomy in Count 12 because that count charged appellants with aggravated sodomy, and the trial court had not instructed the jury on returning a verdict on an included offense. Compare Moyer v. State, 164 Ga.App. 629, 298 S.E.2d 308 (1982). Accordingly, appellants' convictions for sodomy must be stricken.

The third victim testified that two men dressed in shorts and ski masks entered her home without permission between 12:45 and 1:00 a.m. She testified that a ski mask discovered in a dresser drawer in McKenzie's home looked like the masks worn by the intruders, and the blue tennis shoes found at McKenzie's home "definitely" looked like the shoes worn by the taller of the two men. The victim testified that the taller man held a knife during most of her ordeal and, at times, it was placed against her throat. She was pushed by the two men from the hall, where she discovered their presence, to her bedroom, where she was forced to submit to nonconsensual acts of sexual intercourse. She was forced at knife point to disrobe and place her mouth upon the sexual organ of one of her assailants. After two hours, the intruders tied the victim to her bed and left, taking jewelry, a camera, and her car. The car, after sustaining $800 damage, was returned later that morning. A ring taken from Ambler at the time of his arrest was identified by the victim as looking like her ring, and she identified as her camera one that was found in the dresser drawer in McKenzie's home. The examining physician testified that the victim had ankle and wrist bruises consistent with being bound, and external genitalia redness consistent with recent sexual intercourse. In his statement to police, Ambler stated that two friends in a car picked him up and drove him to the victim's residence, where he took flashlights and juice. Ambler's fingerprints were found on the passenger side of the victim's car. McKenzie denied being present at the victim's home. The jury convicted McKenzie of burglary, rape, aggravated assault, false imprisonment, kidnapping, aggravated sodomy, theft by taking, and possession of a knife during the commission of a crime. Ambler was convicted of burglary and of theft by taking. The evidence was sufficient to support the verdicts rendered by the factfinder. OCGA §§ 16-7-1; 16-6-1; 16-5-21; 16-5-41; 16-5-40; 16-6-2; 16-8-2; 16-11-106.

The fourth and final victim testified that four men, one wearing a stocking mask and three with their shirts pulled over their heads, entered her apartment without her permission. While three of the intruders took turns forcing her to submit to sexual intercourse, the fourth ransacked her home. A wire and a "shiny blade" that resembled a knife were in her assailant's hands, and she was not permitted to leave. A radio, calculator, camera, food, and other small items were taken from her home. She identified as hers a radio recovered from the storage shed at McKenzie's residence. The examining physician described various hematoma suffered by the victim and testified that the results of a pelvic examination were consistent with violent and forced sex. A person also indicted for the crimes committed against the fourth victim testified that he saw McKenzie engage in sexual intercourse with the victim. In his statement, McKenzie admitted having had sexual intercourse with the victim but denied taking any property. In his statement, Ambler admitted that he had been in the victim's apartment and had taken a radio, but denied having engaged in sexual intercourse with the victim. Hairs found in the victim's bed linens and clothing were "microscopically consistent with" McKenzie's head and chest hair, and Ambler's pubic hair. There was sufficient evidence for a rational trier of fact to convict appellants of burglary, rape, aggravated assault, false imprisonment, and theft by taking. OCGA §§ 16-7-1; 16-6-1; 16-5-21; 16-5-41; 16-8-2. However, appellants' convictions for kidnapping the fourth victim must be reversed because there was no evidence of asportation of the victim. OCGA § 16-5-40(a); Haynes v. State, 249 Ga. 119, 288 S.E.2d 185 (1982).

2. Appellant Ambler urges suppression of his statement to police, his fingerprints, and his body hair samples on the ground that he was arrested without probable cause.

One of the assailants in the fourth attack identified McKenzie and a man named Mike, whom he believed was staying with McKenzie, as participants in the assault. The victim of the second assault had earlier told police that one of her assailants called the other "Mike." An officer went to McKenzie's home to talk with him, and was told by McKenzie's grandmother that McKenzie and "Mike" were in a rear bedroom. No one was in the room when the officer entered it. The grandmother described McKenzie's and Mike's attire, and the officer left the premises and drove to an area behind the McKenzie home. Within minutes, two males wearing the described clothing came running from the rear of McKenzie's home. The waiting...