McNeese v. State

• Decision Date: 05 March 1984
• Docket Number: No. 67730,67730
• Citation: 316 S.E.2d 564,170 Ga.App. 118
• Parties: McNEESE v. The STATE.
• Court: Georgia Court of Appeals

Page 564

316 S.E.2d 564

170 Ga.App. 118

McNEESE v. The STATE.

No. 67730.

Court of Appeals of Georgia.

March 5, 1984.

Christine A. Van Dross, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Jerry Baxter, Margaret V. Lines, Asst. Dist. Attys., for appellee.

McMURRAY, Chief Judge.

This case involves the conviction and sentence for the offense of rape in two counts with reference to separate victims. This is the second appearance of this case in this court. See in this connection McNeese v. State, 167 Ga.App. 770, 307 S.E.2d 303, in which this court dismissed the first appeal because same was not timely filed. Whereupon the defendant sought an out of time appeal of these felony convictions, and the trial court issued an order, for good and sufficient reason, allowing the out of time appeal. We, therefore, proceed to the consideration of this appeal. Held:

1. Our first consideration is with reference to the sufficiency of the evidence inasmuch as the defendant has enumerated error to the denial of his general grounds for new trial and in failing to grant a directed verdict because of the state's failure to prove venue. There was testimony in the record by one of the victims that they were picked up at a dormitory at a college in Fulton County by two men in an automobile for the purpose of showing them some jeans. They were transported to a wooded area after passing through Buckhead (the victim remembering seeing signs of that place), and she testified she knew she was still in Fulton County since it wasn't that far from the signs of Buckhead where they were raped. As there was no evidence to the contrary, slight evidence as to venue is sufficient. See Dixon v. State, 150 Ga.App. 305(2), 257 S.E.2d 387; Whitfield v. State, 159 Ga.App. 398, 399(2), 283 S.E.2d 627. The question of venue is for the jury to decide, and the jury's decision will not be set aside where there is any evidence to support it. See Johns v. State, 239 Ga. 681, 682(1), 238 S.E.2d 372; Etchison v. State, 149 Ga.App. 866(1), 256 S.E.2d 148. The totality of the evidence showed that two female college students were forced to have sexual intercourse with two men who lured them into an automobile by an offer to sell them blue jeans by taking them out to a wooded area even though no outcry was made until they were returned to their dormitory where they reported the crimes. The jury apparently chose to believe the state's witnesses and not the defendant. The credibility of the witnesses is entirely within the province of the trier of fact, the jury in the case sub judice. See Jones v. State, 147 Ga.App. 296, 248 S.E.2d 557; McCane v. State, 147 Ga.App. 730(1), 250 S.E.2d 181. The jury in this case is also the final arbiter of any conflicts in the evidence despite the defendant's denial of guilt with his plea of not guilty and the attempt to set up an alibi. See Allen v. State, 145 Ga.App. 426, 243 S.E.2d 626. After a careful review of the entire record and transcript we find that a rational trier of fact, the jury in the case sub judice, could reasonably have found from the evidence adduced at trial proof of guilt beyond a reasonable doubt with reference to both counts. The evidence disclosed that this defendant raped both of the victims during the time they were under the control of the two men. Accordingly, there is no merit in any of the enumerations of error shown above. See Moses v. State, 245 Ga. 180, 181(1), 263 S.E.2d 916; Snell v. State, 246 Ga. 648, 272 S.E.2d 348; Caffo v. State, 247 Ga. 751, 754(1), 279 S.E.2d 678; Valenzuela v. State, 157 Ga.App. 247, 249-250(2), 277 S.E.2d 56; Castleberry v. State, 152 Ga.App. 769, 770, 264 S.E.2d 239.

2. We next consider whether the trial court erred in overruling and denying a motion to suppress the lineup and pretrial identification of this defendant and erred in failing to suppress the in-court identification of defendant the same allegedly being tainted because of the suggestive one on one confrontation followed immediately by a lineup. First of all, a photo lineup was conducted and a possible identification was made by one of the victims who looked through seven photographs and identified the defendant as her assailant. The other victim stated that defendant had a strong resemblance to a person she knew and thereafter the defendant was arrested. The victims were brought to the police station for a physical lineup, and these victims made a positive identification of this defendant in the lineup, and they based their in-court identification upon their view of the defendant at the time of the offense and the in-court identification was independent of any other identification. This evidence was correctly admitted. See Coleman v. State, 150 Ga.App. 380(2), 258 S.E.2d 12; McClesky v. State, 245 Ga. 108, 110-112(2), 263 S.E.2d 146.

3. Testimony was offered as to four similar transactions involving victims who were students at the university complex who lived in dormitories all of which were enticed into meeting this defendant outside the dormitory at night by offers of discounted goods. All were taken by the defendant in an automobile to a wooded area which most of the victims recognized as near Bankhead Highway. Other elements of the crime were also similar, and this defendant was identified as the perpetrator in every instance. Independent crimes were admissible to show identity, motive, plan, scheme, bent of mind and course of conduct. See in this connection Cook v. State, 157 Ga.App. 23(2), 276 S.E.2d 84; Bissell v. State, 157 Ga.App. 711(2), 278 S.E.2d 415; Davis v. State, 158 Ga.App. 549, 553(7), 281 S.E.2d 305; Jones v. State, 159 Ga.App. 634(1), 635-637(1), 284 S.E.2d 651; Brown v. State, 250 Ga. 66, 73(5), 295 S.E.2d 727. Defendant contends that the trial court should have been required to hear witnesses concerning the similar transactions in camera prior to their testimony before the jury. However, the evidence certainly was proper as shown above, and we find no merit in any of defendant's complaints in regard to the requirement of an in camera hearing.

4. In response to a question of the defendant's mother on cross-examination in which she was attempting to establish an alibi, she replied "See, sir, as you know, my son's already on probation ... in other words he wasn't supposed to be out at a certain time of night." The trial court did not err in overruling the motion for mistrial since the same was volunteered by a witness for the defense. The defendant did not request that the witness be admonished, and the jury instructed to disregard the testimony, hence no ground for a mistrial appears. See Ellis v. State, 145 Ga.App. 656, 244 S.E.2d 607; Coile v. State, 161 Ga.App. 51, 288 S.E.2d 859; Morgan v. State, 161 Ga.App. 484, 287 S.E.2d 739; Lee v. State, 154 Ga.App. 562, 269 S.E.2d 65; Holcomb v. State, 130 Ga.App. 154, 202 S.E.2d 529. Further, since the evidence disclosed a number of other crimes committed by the defendant as similar transactions it is highly doubtful that the revelation that the defendant was on probation at one time contributed to the verdict. See generally Johnson v. State, 238 Ga. 59, 230 S.E.2d 869; Scott v. State, 162 Ga.App. 541, 542(1), 292...