Watson v. State

• Decision Date: 07 April 1986
• Docket Number: 72237,Nos. 72236,s. 72236
• Citation: Watson v. State, 344 S.E.2d 667, 178 Ga.App. 778 (Ga. App. 1986)
• Parties: WATSON v. The STATE (two cases).
• Court: Georgia Court of Appeals

Page 667

344 S.E.2d 667

178 Ga.App. 778

WATSON v.The STATE (two cases).

Nos. 72236, 72237.

Court of Appeals of Georgia.

April 7, 1986.

Rehearings Denied April 15, 1986 and

April 18, 1986.

Certiorari Denied May 13, 1986.

James Alton Watson, pro se.

Robert E. Wilson, Dist. Atty., for appellee.

DEEN, Presiding Judge.

The appellant, James Alton Watson, was convicted of simple assault and aggravated assault with the intent to rape, for which he was sentenced to respective prison terms of one year and ten years.In this appeal, Watson contends that everything connected with his trial and conviction was error.

As dawn approached on June 16, 1985, the appellant first saw Margerita Allen at the Libra Lounge.It was not the beginning of a beautiful friendship.

Around midnight Margerita Allen went with her cousin to the Libra Lounge for dance and drinks.A few minutes after 4:00 a.m., closing time for the lounge, she found herself stranded, her cousin having left earlier without her.The appellant had gallantly offered her a ride home; as they started to leave in his car, however, he drove around to the rear of the building, explaining that he needed to get something in his own business establishment, the Queen of the South Barbeque, which was located next to the Libra Lounge.Accepting the appellant's invitation to join him inside, she looked around the premises while waiting on the appellant, who eventually initiated a sexual advance by touching her breasts and indicating that he would like a "head job."

Hoping to divert this development, she asked for permission to use the restroom, but the appellant made her take off her clothes first.After using the restroom, she attempted to sneak past the appellant, who had by this time also removed his clothing.The appellant grabbed her, and when she resisted, he beat her repeatedly with his fists, pushed her head against the wall, and struck her several times with a metal pipe.Eventually, she was able to throw some object against and crack the front plate glass window, and then break out the window by the force of her body.Naked, bleeding, and screaming for help she then ran across the parking lot and into the street, and was aided by a City of Atlanta police officer who happened to be driving to work.

The police officer called for an ambulance to transport Ms. Allen to a hospital, and contacted the DeKalb County Police Department after realizing that the location actually was within DeKalb's jurisdiction.Before the DeKalb police arrived, the appellant drove up and was detained by the Atlanta police officers.Upon their arrival and having been informed by the Atlanta police officers of the incident, the DeKalb police arrested appellant, and searched and impounded the vehicle driven by the appellant.The victim's clothing was lying in plain view on the front seat.One officer, observing blood on the floor and walkway around the broken glass window, entered the premises primarily to check for other bodies.A second officer, who arrived a few minutes later at the scene and was unaware that the first officer had already checked the premises, entered the premises for the same reason and eventually seized a knife and a metal rod.

According to the appellant, although he had been at the Libra Lounge briefly, he had returned to his barbeque stand, which did not close until approximately 5:00 a.m.Later on, Margerita Allen had come to his back door wanting to buy some barbeque, but he had nothing left to sell except a soft drink.As he counted the day's business proceeds, she had bared her breasts and propositioned him.Uninterested, he had continued to count the money, when the telephone rang.As he answered the phone, he saw her grab some of his money and he lurched after her.There was a brief struggle, during which he slapped her, but she slipped away and ran through the plate glass window, dropping the money as she did so.Retrieving the dropped money, he noticed a car drive off in a hurried fashion; he called the police and got in his car to chase what he suspected had been the victim's getaway car.He had not even left the parking lot, when he drove back to the front of his barbeque stand and was arrested by the police on the scene.He claimed that he did not own the automobile impounded and searched by the police, but that it was a car that he had repossessed for a finance company.He also suggested that the substance on the floor of his premises, identified as blood by the police, probably had been barbeque sauce, explaining that at the Queen of the South Barbeque "you wouldn't know blood from barbeque sauce."He also maintained that Ms. Allen had been fully clothed when she ran through the plate glass window, and that he had no idea how her clothing got into the vehicle.

At trial, William Robertson told how, while making his morning rounds collecting cans, he had observed a naked man and a naked woman struggling inside the Queen of the South Barbeque.Indisposed to interfere with the interpersonal affairs of others, despite the woman's cries for help, and perhaps mindful of having a living to make, he had continued his route.However, he had stopped on his way back and told the police officers what he had seen.

The appellant was indicted for two counts of aggravated assault, one by assaulting with a deadly weapon and the other by assaulting with the intent to rape.The jury returned a verdict of guilty of simple assault and aggravated assault with the intent to rape.The appellant moved for new trial and also moved for arrest of the judgment, and the trial court denied both motions.Appealnumber 72236 concerns the denial of the appellant's motion for new trial, while appeal number 72237 concerns the denial of the motion for arrest of the judgment; because the issues in each appeal are identical, the appeals are here consolidated.Held:

1.Many of the appellant's enumerations of error concern the sufficiency and validity of the indictment.The appellant contends that the indictment was void, on the basis that both counts omitted essential elements of the crime and particular facts that constituted the alleged offenses.SeePonder v. State, 121 Ga.App. 788, 175 S.E.2d 55(1970).Under OCGA § 16-5- 21(a) a person commits aggravated assault when he assaults either (1) with the intent to murder, rape or rob; or (2) with a deadly weapon or any object which, used offensively against a person, is likely to or actually does result in serious bodily injury.In the instant case, count one of the indictment charged the appellant with aggravated assault by assaulting "Margerita Allen with a metal pipe, a deadly weapon when used in the manner in which it was used."Count two charged him with aggravated assault by assaulting Margerita Allen with the intent to rape her.Both counts thus track the language of the statute and sufficiently contain and inform the defendant of the elements of the offenses charged.SeeWilliams v. State, 165 Ga.App. 69, 299 S.E.2d 402(1983);Mealor v. State, 135 Ga.App. 682, 218 S.E.2d 683(1975);OCGA § 17-7-54, generally.Having specified the particular species of aggravated assault charged in each count, the state was not required to summarize in the indictment the evidence which it intended to adduce at trial.Mell v. State, 69 Ga.App. 302, 25 S.E.2d 142(1943);cf.Lee v. State, 117 Ga.App. 765, 162 S.E.2d 229(1968).See alsoState v. Black, 149 Ga.App. 389, 254 S.E.2d 506(1979).

2.The appellant also attempts to articulate a double jeopardy argument, contending that he was improperly tried and convicted of two crimes that arose out of but one transaction.Under OCGA §§ 16-1-6and16-1-7, a defendant may be prosecuted for two crimes based on the same conduct, but he may not be convicted of more than one crime if one crime is included in the other.The appellant's contention thus would have merit only if the aggravated assault with the deadly weapon (or rather the derivative simple assault) and aggravated assault with the intent to rape merged as a matter of law or fact.We find no merger because there was sufficient evidence of two separate assaults.Cf.Luke v. State, 171 Ga.App. 201, 318 S.E.2d 833(1984).The simple assault was a sequential reaction to the victim's resistance to the charged sexual assault.SeeMcCulligh v. State, 169 Ga.App. 717, 314 S.E.2d 724(1984), andStrozier v. State, 171 Ga.App. 703, 320 S.E.2d 764(1984).

3.The appellant's contention that there was a fatal variance between the indictment and the evidence adduced at trial is without merit.Allegations and proof must correspond sufficiently in order to enable a defendant to present his defense and not be taken by surprise by the evidence at trial, and to protect the defendant against another prosecution for the same offense.McCrary v. State, 252 Ga. 521, 523, 314 S.E.2d 662(1984);DePalma v. State, 225 Ga. 465, 169 S.E.2d 801(1969).In this case, there was no variance except for an obvious typographical error in the appellant's middle name indicated in the first...