Stevenson v. State

• Citation: 612 S.E.2d 521,272 Ga. App. 335
• Decision Date: 21 March 2005
• Docket Number: No. A04A2385.,A04A2385.
• Parties: STEVENSON v. The STATE.
• Court: Georgia Court of Appeals

612 S.E.2d 521

272 Ga. App. 335

STEVENSON v. The STATE.

No. A04A2385.

Court of Appeals of Georgia.

March 21, 2005.

COPYRIGHT MATERIAL OMITTED

Joseph Jones, Jr., Greenville, for Appellant.

Peter Skandalakis, District Attorney, Robert Peterkin, Assistant District Attorney, for Appellee.

ADAMS, Judge.

A Meriwether County jury convicted Kelevin J. Stevenson of one count of rape, but acquitted him on additional counts of kidnapping with bodily injury, false imprisonment and aggravated assault. In this appeal, Stevenson asserts error in the trial court's denial of his out-of-time motion for new trial. We affirm.

1. Stevenson first argues that the evidence was insufficient to support his conviction, noting that the rape conviction is inconsistent with his acquittal on the counts of kidnapping with bodily injury, aggravated assault and false imprisonment. He also asserts that the rape charge should have merged with other charges.

Stevenson's argument that the verdict is inconsistent has no merit under Georgia law:

Georgia does not recognize an inconsistent verdict rule, which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count. A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury's decision to convict on certain counts and acquit on other counts.

(Citation and footnote omitted.) Mullady v. State, 270 Ga.App. 444, 447(2), 606 S.E.2d 645 (2004). See also Wyley v. State, 259 Ga.App. 348(1), 577 S.E.2d 32 (2003) ("the jury's not guilty verdicts on some offenses have no bearing whatsoever on the sufficiency of the evidence supporting the guilty verdicts on other offenses").¹

Similarly, there is no merit to Stevenson's argument that he is entitled to a reversal on the ground of merger. If a defendant's conduct establishes more than one crime, he may be prosecuted for each crime. OCGA § 16-1-7(a). But under the merger doctrine, "one may not be convicted legally of a crime that is included as a matter of law or fact in another crime for which that person stands convicted...." (Footnote omitted.) Brewster v. State, 261 Ga.App. 795, 798(2), 584 S.E.2d 66 (2003). See also OCGA § 16-1-7(a)(1), (2). Thus, although a defendant may be tried on multiple counts arising out of the same conduct, the rules of merger permit only one conviction and sentence for a single crime and all included offenses. Because Stevenson was convicted under only one count, the issue of merger does not arise in this case. Hill v. State, 207 Ga.App. 65, 68(5), 426 S.E.2d 915 (1993).²

And it is apparent from a review of the testimony at trial that there was sufficient evidence to support Stevenson's rape conviction. In considering this appeal, we view the evidence in the light most favorable to the verdict, and Stevenson no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only look to see if there is any evidence to support the verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Kelly v. State, 255 Ga.App. 813(1), 567 S.E.2d 36 (2002). "Conflicts in the testimony of the witnesses... are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Citation and punctuation omitted.) Kelly v. State, 255 Ga.App. at 813(1), 567 S.E.2d 36.

Viewed in the light most favorable to support the jury's verdict, the evidence shows that Stevenson worked at Cagle's Incorporated in Harris County, along with Latysha Walker and Mandrell Parham. On October 9, 2001, Walker, Stevenson and Parham got off work at 1:45 p.m. and drove to the home of Demetria Lowe in Manchester after first making several stops to purchase alcohol, marijuana and cocaine. The three arrived at Lowe's house at about 5:00 p.m. and sat talking to each other in the living room.

At some point, Walker left the living room to use the bathroom and Stevenson followed her and tried to enter the bathroom behind her. Walker told Stevenson that he could use the bathroom when she was finished. She told Stevenson to step out of the bathroom, and she managed to close and lock the door when he left. As Walker was still in the bathroom, Stevenson suddenly came in and grabbed her by the pants, tearing them in the process, and pulled her into a nearby bedroom. Walker testified that Stevenson then held her down on the bed with his elbow across her throat, as he forced her to have intercourse with him and she pleaded for him to stop.

During this time, Parham asked Lowe if he could use her bathroom. When he opened the bathroom door, he could see Stevenson on top of Walker, with his forearm around her neck. Walker was partially naked and was saying, "No, K.J.; stop K.J.; I can't breathe." Parham said that he panicked and left because he did not want to have anything to do with what was happening.

Stevenson admitted at trial that he had sex with Walker at Lowe's house, but he testified that Walker and Parham were doing cocaine in the bathroom at Lowe's house, when they called for him. Walker indicated at that point that she wanted to have sex with him. He said that Walker never screamed, cried or asked him to stop.

"A person commits the offense of rape when he has carnal knowledge of ... [a] female forcibly and against her will.... Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ." OCGA § 16-6-1(a)(1). We conclude that there is sufficient evidence from which the jury could have found beyond a reasonable doubt that Stevenson was guilty of the offense of rape. Munn v. State, 263 Ga.App. 821, 823(1), 589 S.E.2d 596 (2003); Williams v. State, 218 Ga.App. 785, 789(4), 463 S.E.2d 372 (1995).

2. Stevenson next asserts that the trial court erred in allowing the state to present expert testimony on rape trauma syndrome because Georgia has not yet recognized the existence of this syndrome as an accepted scientific principle, and the trial court below did not make such a finding.

The prosecutor in this case presented the testimony of Elizabeth Carnes, an advocate for victims of sexual assault at the Carroll Rape Crisis Center. Carnes testified that she has been through fifty hours of sexual assault training and had worked at the rape crisis center for over two years. During that time, she had counseled over 100 purported victims of sexual assault. In addition, Carnes had published one article that was presented at a seminar and had written several articles for the center's newsletter. Based upon this testimony, the trial judge qualified Carnes as an expert, but instructed the jury that he was allowing her to testify regarding the conduct of individuals who allege sexual assault or rape only to a very limited extent. He told the jury that Carnes could not testify as to whether anyone had been raped.

Carnes testified that there was no typical reaction to sexual assault and that alleged victims can react in many different ways. She also said that based upon national statistics and her own experience, approximately 86 percent of victims do not report their sexual assault to authorities, and of those who do report the crime, approximately 12 percent wait 24 to 72 hours to make the report, for a number of reasons. For example, they may be scared or they may be experiencing trauma.

Although Stevenson is correct that this state has not yet recognized rape trauma syndrome as an accepted principle in the scientific community,³ we do not construe Carnes's testimony as relating to such a syndrome. Rather, she said that there was no typical or common behavior among rape victims. And although she testified that alleged victims of sexual assault may delay reporting such crimes, this Court has previously upheld the admission of similar testimony from a similar witness. Thomas v. State, 239 Ga.App. 460, 462-463(3), 521 S.E.2d 397 (1999).

In Thomas, the state presented the testimony of the director of the Augusta Rape Crisis Center regarding the number of women who delay in reporting a rape or fail to report at all. The Court held that disputed testimony was "clearly related to knowledge within [the witness's] area of expertise" and found no error in its admission. Id. While the witness in Thomas had a master's degree in clinical counseling and more experience in counseling sexual assault victims, we cannot say that the trial court manifestly abused its discretion in qualifying Carnes as an expert in this case.

A decision as to whether a witness possesses such learning or experience to qualify as an expert witness lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused. An expert is one whose habits and profession endow that person with the particular skill needed in forming an opinion on the subject matter at inquiry.

(Citations omitted.) Griffin v. State, 243 Ga.App. 282, 286(5), 531 S.E.2d 175 (2000). "Formal education in the particular subject is not a prerequisite for expert status." (Citation omitted.) Smith v. State, 210 Ga.App. 451, 452(3), 436 S.E.2d 562 (1993).

3. Stevenson next contends that he was denied the effective assistance of counsel at trial. "To establish a claim of ineffectiveness, it is the defendant's burden to show that trial counsel's performance was deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 695-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); [cit.]" (Emphasis in original.) Baker v. State, 270 Ga.App. 762, 764(2), 608 S.E.2d 38 (2004). Moreover, "[t]here is a strong presumption that trial counsel...