Wells v. State

• Decision Date: 12 March 1993
• Docket Number: No. A93A0140,A93A0140
• Citation: 430 S.E.2d 611,208 Ga.App. 298
• Parties: WELLS v. The STATE.
• Court: Georgia Court of Appeals

Page 611

430 S.E.2d 611

208 Ga.App. 298

WELLS v. The STATE.

No. A93A0140.

Court of Appeals of Georgia.

March 12, 1993.

Reconsideration Denied March 31, 1993.

Certiorari Denied July 15, 1993.

Duffy & Feemster, Dwight T. Feemster, Ronald K. Thompson, Savannah, Jo Beth Gosdeck, Suwanee, for appellant.

Richard A. Malone, Dist. Atty., Melvin E. Hyde, Jr., Anne L. Latta, Asst. Dist. Attys., for appellee.

BIRDSONG, Presiding Judge.

Dennis Lee Wells appeals his judgment of conviction of rape and his sentence. Appellant was found not guilty of solicitation of sodomy during the same incident.

Appellant asserts evidence insufficiency and also enumerates three errors pertaining to the admission of certain similar transaction evidence.

Appellant and the victim agree that in late August 1990, during the course of a date, appellant engaged in an act of sexual intercourse with the victim; however, appellant testified the act was consensual while the victim testified that the rape was not consensual, was completed against her will, and that, although she resisted to the best of her ability, her resistance was forcibly overcome by appellant. There exist obvious inconsistencies between the testimony of the victim and appellant not only as to the main issue of consent but as to the circumstances leading to their date, to the decision to attend the party at the house of the victim's friend, to the degree, if any, of affection displayed by the victim toward appellant at the party, the degree of alcohol consumed by the victim, and the circumstances leading to the act of intercourse after the party. Medical evidence revealed no corroborating evidence of violence to the victim's body; appellant's clothing was not torn. However, appellant had four scratch marks on his shoulder, tending to corroborate that portion of the victim's testimony that she thought she had clawed appellant's shoulder when her hand was freed temporarily during her resistance. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. Reviewing the transcript in this light reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of rape as convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. Appellant asserts the trial court erred in admitting evidence of an alleged similar transaction. Regarding the similar transaction incident, a female witness, aged 27, testified before the jury that, in February 1990, while working, she received three anonymous obscene phone calls. Each time the caller would ask her to perform oral sex or to allow oral sex to be performed upon her, and discussed other sexual activities using vulgar language. It appears the caller also requested anal sex. The caller obviously knew where the witness worked and the places she frequented for lunch. Even after talking obscenely to the witness, the caller stated he wanted a face-to-face confrontation so he could meet her and bring her things at her office. Following the third obscene phone call, she received a dozen roses with a card from the caller with X's and O's on the bottom. She informed the police. While the police were at her office, another call was received and the police advised her to arrange a meeting at her office with the caller. She complied. (At a previous out-of-court hearing, the witness testified that an officer witnessed this meeting and that the meeting was taped; she also testified that before appellant left her office she informed appellant she was going to charge him with making obscene calls, but he replied that she could do nothing and that she did not know the law.) The caller arrived at her office and admitted making the calls to her; she told appellant not to see her again. He acknowledged that he had no chance of a relationship with her and departed her office only to call a few minutes later and ask her for a date. The next day she observed appellant driving by her twice, waving and smiling at her; she informed the business she went into and they called the police to escort her back to her office.

(a) This case was tried before the opinion was issued in Williams v. State, 261 Ga. 640, 409 S.E.2d 649, establishing certain procedures and requiring certain express findings on the record before similar transaction evidence can be admitted. As appellant has not cited Williams, supra, or its progeny, and has not advanced any argument in its appellate brief that the new affirmative findings requirements of Williams, supra, were not adequately complied with, any determination of the Williams requirements is not appropriate on appeal. See Court of Appeals Rule 15(c)(2); McGaha v. State, 204 Ga.App. 248(2), 418 S.E.2d 802; Boatright v. State, 192 Ga.App. 112, 119(10), 385 S.E.2d 298. Moreover, we note that the evidence presented by the State at the out-of-court hearing conducted just prior to the commencement of trial was sufficient for the trial court to have concluded affirmatively on the record that each of the requirements of Williams, supra, had been satisfied. Compare Jefferson v. State, 206 Ga.App. 544(4), n. 1, 425 S.E.2d 915. Harm as well as error must be established to necessitate case reversal. Robinson v. State, 229 Ga. 14, 15, 189 S.E.2d 53.

Appellant's identity as the perpetrator of the alleged similar transaction is not contested, and it has not been enumerated as an error that the State failed to prove appellant's identity as the perpetrator of the similar transaction incidents in question. Accordingly, this issue is not before us on appeal. See, e.g., Smith v. State, 192 Ga.App. 298, 384 S.E.2d 459; Roberts v. Cotton States Mut. Ins. Co., 186 Ga.App. 371, 373, 367 S.E.2d 272. Likewise not before us on appeal is any issue regarding the adequacy of any limiting instructions given to the jury during the course of the trial regarding jury consideration and use of the similar transaction evidence.

(b) Appellant asserts the trial court erred by admitting similar transaction evidence as it was not sufficiently similar and lacked logical connection with the offenses for which appellant was being tried.

In support of his contention appellant cites and relies upon Wimberly v. State, 180 Ga.App. 148, 348 S.E.2d 692 and makes passing reference to Larkins v. State, 230 Ga. 418, 197 S.E.2d 367. That portion of Larkins, supra, cited in Wimberly, supra, for the proposition that the rule allowing admissibility of similar transaction evidence does not apply in rape cases where the only issue for the factfinder is whether the act of sexual intercourse was consensual as, in such circumstances, malice, intent, motive, etc. is "not relevant" (Wimberly, supra, 180 Ga.App. at 150(1), 348 S.E.2d 692) in effect was overruled in Thomas v. State, 234 Ga. 635, 636, 217 S.E.2d 152 and Hunt v. State, 233 Ga. 329, 331, 211 S.E.2d 288. See Franklin v. State, 201 Ga.App. 147, 148(1), 410 S.E.2d 451, citing Taylor v. State, 195 Ga.App. 634, 635, 394 S.E.2d 597. Accordingly, we find that Wimberly is not controlling in the disposition of this matter. Rather, the current general rule as to the admissibility of similar transaction evidence is that announced in Williams, supra; with the added proviso that "[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses." Johnson v. State, 242 Ga. 649, 653(3), 250 S.E.2d 394; Oller v. State, 187 Ga.App. 818, 821(2), 371 S.E.2d 455. (For reasons stated above, the issue of procedural compliance with the requirements of Williams, supra, is not before us for appellate adjudication.)

The indictment returned against appellant averred not only the offense of rape but also averred the offense of solicitation of the same female victim on the same date to perform oral sodomy upon him. The trial court admitted similar transaction evidence of appellant's solicitation of another woman to perform oral sodomy upon him.

The victim in the case at bar testified as follows: She is in her early twenties and is attending college. At the time of the incident she was working at a hospital as a nurse. She had left the hospital to pick up an order of food for the nurses on duty. Appellant, whom she had never met before, followed her out of the restaurant and offered to help her put her items in her car. Appellant asked the victim to come to his motel room for a drink when she got off work, but she declined. Appellant persisted in his attempt to go out with the victim so she gave her phone number to him at the hospital. Appellant called that night and again asked her to come over for a drink. The victim suggested appellant call her the next evening in an attempt to stall for time. Ultimately, she agreed to go with appellant to a social gathering, but ended up taking appellant to her friend's house. Appellant could not keep his hands off the victim that evening and, after he had several drinks, he even attempted to follow her into the bathroom. The victim got into appellant's car to be driven home but on the way appellant turned his car around and went to his motel to obtain something from his room. Appellant invited the victim into his room. She declined his offer, which he had repeated nine or ten times, until he eventually threatened not take the victim home until she came into his room. Although she was scared, the victim finally agreed to go inside for a few minutes. Once inside appellant locked the door, pushed the victim onto the bed and forcibly engaged her in an act of intercourse without her consent and against her will. Appellant "talked through the whole thing,"...