Ross v. State

• Decision Date: 14 May 1990
• Docket Number: No. A90A0591,A90A0591
• Citation: 195 Ga.App. 624,394 S.E.2d 418
• Parties: ROSS v. The STATE.
• Court: Georgia Court of Appeals

Page 418

394 S.E.2d 418

195 Ga.App. 624

ROSS v. The STATE.

No. A90A0591.

Court of Appeals of Georgia.

May 14, 1990.

Arthur A. Mendenhall, Jr., Columbus, for appellant.

Douglas C. Pullen, Dist. Atty., James C. Bernard, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant, Donald Eric Ross a/k/a Donald Eric Adams, appeals his sentence and conviction of rape and aggravated sodomy and the order of the trial judge denying his motion for new trial.

The alleged victim testified that she was raped and sodomized, by force and without her consent, by appellant. Appellant testified that the alleged victim had consented to engaging in sexual intercourse with him.

Following trial, on July 13, 1989, appellant was appointed a new counsel, hereinafter called appellate defense counsel, who immediately filed a motion for new trial asserting only the general grounds and that the trial court erred in failing to sever the offenses. The record does not contain any amended motions for new trial; however, it does reflect that on July 12, 1989, the trial judge issued a show cause order and supersedeas based on the motion for new trial. Sentence was formally entered against appellant on June 19, 1989. A hearing ultimately was held upon the motion for new trial, although no hearing transcript pertaining thereto has accompanied this record. By order filed November 16, 1989, the trial court denied appellant's motion for new trial. Held:

1. Appellant asserts that there was insufficient evidence to convict him of rape and aggravated sodomy. On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Smith v. State, 192 Ga.App. 768(1), 386 S.E.2d 530; Watts v. State, 186 Ga.App. 358(1), 366 S.E.2d 849.

a. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of rape. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

b. Regarding the offense of aggravated sodomy, we find that a fatal variance exists between the allegata and the probata. The indictment avers that appellant committed aggravated sodomy in one manner and in one manner only, that is, "by putting his mouth to the sex organ of [the alleged victim]...." At trial both the victim and appellant denied that appellant committed sodomy upon the victim in this manner. Rather, the victim testified that appellant forced her to perform oral sex upon him, and that he thereafter committed an act of anal intercourse upon her. The jury immediately noticed this variance, and a colloquy occurred between the jury foreman and trial judge, which in our view, served only to further compound confusion.

This case is distinguishable from those cases in which an indictment avers several different manners in which the offense was committed, and there exists evidence sufficient to support a finding of guilt as to one of these averred manners (e.g., Lubiano v. State, 192 Ga.App. 272(1)(a), 384 S.E.2d 410); and, those cases where an appellant was an aider and abetter to the crime as averred (e.g., Carter v. State, 168 Ga.App. 177(3), 308 S.E.2d 438). In this case, appellant was the only averred perpetrator and only one manner of crime commission was averred.

While an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute description of a necessary fact must be proved as charged. See generally Kelly v. State, 188 Ga.App. 362(2), 373 S.E.2d 63, citing Bell v. State, 227 Ga. 800, 802(1), 183 S.E.2d 357. " 'If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.... [N]o averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. (Cits.) ... To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance ... (Cits.)' " (Emphasis supplied.) Roberson v. State, 187 Ga.App. 485, 487, 370 S.E.2d 661; Accord Fulford v. State, 50 Ga. 591, 593; Hamby v. State, 76 Ga.App. 549, 554(2), 46 S.E.2d 615; Ga.Crim.Trial Prac. (1989 ed.), § 20-14 and cases therein cited. Accordingly, we find that there exists insufficient evidence, within the meaning of Jackson v. Virginia, supra, from which a rational trier of fact could conclude that appellant committed the offense of aggravated sodomy as averred.

2. This court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record (Hudson v. State, 185 Ga.App. 508(1), 364 S.E.2d 635), and a brief or an attachment thereto cannot be used in lieu of the record or transcript for adding evidence to the record (Williams v. State, 193 Ga.App. 677, 678, 388 S.E.2d 893).

3. Appellant has made two separate enumerations of error based on the grounds of ineffective assistance of his trial defense counsel. Subsequent to trial, a new counsel entered appearance and was duly appointed as appellant's counsel. New counsel immediately filed a timely motion for new trial based on the general grounds and an additional ground that the trial court erred in failing to sever the offenses. The motion for new trial contained no assertion whatsoever of ineffectiveness of trial defense counsel, and the record reflects that new counsel did not thereafter amend his motion for new trial to add such an issue. Subsequently, a hearing apparently was held on appellant's motion for new trial, but we have not been provided with a transcript of this hearing. The trial court subsequently denied appellant's motion for new trial. It thus appears from the state of the record before us that, after obtaining the appearance and appointment of new counsel in his behalf, appellant failed to file timely either a motion for new trial or an amended motion for new trial asserting ineffectiveness of trial defense counsel. Accordingly, all issues of inadequacy of trial defense counsel are waived, and we will not review that question on appeal. Washington v. State, 193 Ga.App. 823, 389 S.E.2d 407 (1989); accord Dawson v. State, 258 Ga. 380, 369 S.E.2d 897; Smith v. State, 255 Ga. 654, 341 S.E.2d 5. In this regard, appellant in essence asserts in his briefs that these challenges were heard at the earliest practicable moment, i.e., during the hearing conducted on his motion for new trial. These bare assertions in appellant's brief cannot be considered on appellate review. See Division 2 above. Moreover, we note that appellant has not filed any pauper's affidavit or affidavit of indigency with this court. Accordingly, if he desired that we consider the evidence adduced at the hearing on his new trial motion, he should have made suitable arrangement to insure that it was transcribed and forwarded to this court. It is a well-established appellate rule that " '[t]he burden is on the appellant to show error by the record, and when a portion of the evidence ... bearing upon the issue raised by the enumeration of error, is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.' " Brown v. State, 146 Ga.App. 286(2), 246 S.E.2d 370.

4. Appellant contends that "[a]ppellant's trial [defense] counsel failed to make the State prove the proper chain of custody for introduction of the rape kit used in examining the alleged victim," and that he was denied a fair trial thereby. To the extent that this enumeration could be construed to assert an ineffective assistance of counsel claim, we will not consider it. See Division 3 above. Moreover, the enumeration of error does not include an assertion of ineffective assistance of counsel and an enumeration of error cannot be enlarged by brief on appeal to cover issues not contained in the original enumeration. Vinson v. State, 190 Ga.App. 676(3), 379 S.E.2d 792.

Trial defense counsel initially...