Veal v. State
| Decision Date | 19 April 1989 |
| Docket Number | No. A89A0087,A89A0087 |
| Citation | 382 S.E.2d 131,191 Ga.App. 445 |
| Parties | VEAL v. The STATE. |
| Court | Georgia Court of Appeals |
Jonathan J. Wade, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Richard E. Hicks, Henry M. Newkirk, Joseph J. Drolet, Asst. Dist. Attys., for appellee.
Dennis James Veal was convicted of rape, aggravated sodomy, and aggravated assault with intent to rape arising out of two incidents involving different victims, and he filed this appeal.
1. Appellant first contends the trial court erred by denying his motion for directed verdict of acquittal on the rape charge because the State did not prove the essential element of penetration. At trial the rape victim testified that appellant's penis entered the outer surface of her vagina, and the examining physician testified that, although he could not determine whether appellant's penis entered the victim's vagina, he did find lacerations on her vulva and hymen.
Payne v. State, 231 Ga. 755(1), 204 S.E.2d 128 (1974). Penetration may be proved by indirect or circumstantial evidence. Id. Accordingly, construing the evidence to support the jury's verdict, we find that a rational trier of fact reasonably could have found appellant guilty beyond a reasonable doubt of the offense of rape. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 157 Ga.App. 604(1), 278 S.E.2d 5 (1981).
2. Appellant also enumerates as error the denial of his directed verdict motion on the aggravated assault with intent to rape charge, contending that as the evidence showed he used a blank gun the State did not prove use of a "deadly weapon" as alleged in the indictment, and thus there was a fatal variance between the allegata and the probata.
The assault victim testified that appellant accosted her in a women's restroom at Grady Hospital, pointed a gun at her, and demanded that she have sex with him. After persuading appellant to go somewhere more private, she was able to grab the gun from his pocket and call for help. She recalled feeling "panicked" after she saw the gun, and testified that she did not know until after a hospital security guard restrained appellant that the gun was a blank gun.
Under OCGA § 16-5-21(a) a person commits the offense of aggravated assault if the weapon used in commission of the charged act reasonably appeared to the victim to be deadly even if the weapon was not actually capable of inflicting deadly harm. Watts v. State, 142 Ga.App. 857, 859, 237 S.E.2d 231 (1977). A pistol used in the manner established by the evidence in the instant case is a "deadly weapon" within the meaning of OCGA § 16-5-21(a) as a matter of law even though it was loaded only with blanks, see Adsitt v. State, 248 Ga. 237, 240(6), 282 S.E.2d 305 (1981), and thus there was no fatal variance between the allegata and the probata. See generally Hamilton v. State, 180 Ga.App. 197-198(1), 348 S.E.2d 735 (1986).
3. Appellant contends in his third enumeration that the State improperly placed his character into evidence when the detective who investigated the rape testified that the victim identified appellant from a "lineup book of people who hung around" the bus station where the rape occurred. This issue has been decided adversely to appellant. Woodard v. State, 234 Ga. 901, 902(2), 218 S.E.2d 629 (1975).
4. Appellant's final enumeration of error is that the trial court erred by denying his motion in limine to preclude the rape victim from testifying that during the attack she told appellant she was a virgin.
The trial transcript reveals that in response to the prosecutor's question regarding the sequence of events during the attack, the rape victim testified that ...
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State v. Nejad
...it takes the issue of "deadliness" from the jury. Adsitt v. State, 248 Ga. 237(6), 282 S.E.2d 305 (1981). See also Veal v. State, 191 Ga.App. 445(2), 382 S.E.2d 131 (1989) (pistol loaded with blanks that is pointed at victim in conjunction with an unlawful demand is a deadly weapon as a mat......
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Logan v. State
...that the "Rape Shield Statute, OCGA § 24-2-3, supersedes all evidentiary exceptions, including the res gestae rule." Veal v. State, 191 Ga.App. 445, 447(4), 382 S.E.2d 131; Johnson v. State, 146 Ga.App. 277, 281, 246 S.E.2d 363. Defendant's reliance on Villafranco, 252 Ga. 188, 193(1), 313 ......
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Herndon v. State
...evidence that the victim was a virgin—meaning that she had not had prior sexual relations— was inadmissible. See Veal v. State, 191 Ga.App. 445, 447(4), 382 S.E.2d 131 (1989); see generally Johnson v. State, 146 Ga.App. 277, 246 S.E.2d 363 (1978); compare Villafranco v. State, 252 Ga. 188, ......