Williamson v. State

• Decision Date: 17 March 1988
• Docket Number: No. 75107,75107
• Parties: WILLIAMSON v. The STATE.
• Court: Georgia Court of Appeals

Page 863

367 S.E.2d 863

186 Ga.App. 589

WILLIAMSON v. The STATE.

No. 75107.

Court of Appeals of Georgia.

March 17, 1988.

Rehearing Denied March 30, 1988.

Joe A. Weeks, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Benjamin H. Oehlert III, H. Allen Moye, Deborah W. Espy, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant was indicted for the offenses of rape and two counts of aggravated sodomy. The jury returned a verdict of guilty of rape and guilty of two counts of simple battery. Defendant appeals. Held:

1. The State's evidence shows that the victim got off work at 1:00 p.m. and traveled on the "MARTA" train to the downtown Five Points Station. During the course of this journey the victim met an individual who introduced himself as Tony Johns. Tony Johns persuaded the victim to accompany him to an apartment near the "West Lake MARTA" station. At the apartment the defendant answered the door and the three sat down at the dining room table. Thereafter, Tony Johns stated to the victim that he wanted to discuss something with her privately in the back of the apartment. The victim voluntarily accompanied Tony Johns to a bedroom. When the victim attempted to leave Tony Johns pushed her down on the bed. Tony Johns called the defendant into the bedroom and told defendant to look through the victim's purse and jacket for weapons, and to take any money that she had. Tony Johns then told defendant to go get them something to drink. While defendant was gone Tony Johns forcibly removed the victim's pants, threatened her with a knife and had her remove the remainder of her clothes. Subsequently, Tony Johns, defendant and two other males had various sexual contacts with the victim.

Defendant's first enumeration of error raises the sufficiency of the evidence of rape. Force is an essential element of rape. Henning v. State, 153 Ga.App. 465, 265 S.E.2d 372. Defendant argues that there is no evidence of the use of force by defendant, or any evidence that he had knowledge of any use of force.

Contrary to defendant's assertion, the victim testified as to pleading with defendant to release her, that defendant refused to do so and continued having vaginal intercourse with her. We find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of defendant's guilt beyond a reasonable doubt of the offense of rape. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Hence, it was not error to deny defendant's motion for directed verdict of acquittal as to the offense of rape. Humphrey v. State, 252 Ga. 525, 527(1), 314 S.E.2d 436.

2. Outside the presence of the jury, an Atlanta police detective testified that defendant was chosen by the victim from a photographic lineup. The officer identified a State's exhibit as the photographic lineup from which the victim had identified the defendant. On cross-examination it was established that the photograph of defendant in the State's exhibit had been taken after the time of the photographic lineup. The officer then stated that the exhibit did not contain the correct photograph. The State withdrew the exhibit and the trial court ruled that no evidence in regard to or reference to the photographic lineup would be presented before the jury. Defendant contends the trial court's ruling prohibiting reference to the photographic lineup impermissibly curtailed his cross-examination of the witness.

"OCGA § 24-9-64 (Code Ann. § 38-1705) provides in part: 'The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him....' The U.S. Supreme Court has argued that great latitude be allowed in cross-examination because it is 'one of the safeguards essential to a fair trial.' Alford v. United States, 282 U.S. 687, 692 (51 SC 218, 75 LE 624). However, the scope of cross-examination is not unlimited. 'The extent necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bounds. It is error only when this discretionary authority is abused. (Cits.) The extent of cross-examination can be curtailed if the inquiry is not relevant nor material. (Cits.)' Geiger v. State, 129 Ga.App. 488, 496 (199 SE2d 861)." Harris v. State, 168 Ga.App. 159, 160(2), 308 S.E.2d 406. In the case sub judice, the trial court acted appropriately and within the court's discretion in limiting cross-examination. See also Samuels v. State, 174 Ga.App. 684, 685(2), 331 S.E.2d 62.

3. The State introduced a statement of defendant made shortly after his arrest. The defendant testified and was thoroughly cross-examined. Relying on Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661, defendant requested the charge: "A prior consistent out-of-court statement of a witness is substantive evidence of the matter asserted." Defendant enumerates as error the trial court's refusal to give the requested charge.

While the requested charge may be a correct statement of law, its inclusion in the charge given the jury was not required because the substance of the requested charge was adequately covered in the charge given. Amerson v. State, 177 Ga.App. 97, 100(4), 338 S.E.2d 528.

4. Finally, defendant contends the trial court erred in charging the jury: "If the actual sexual intercourse took place or occurred in a continuing state of circumstances involving force or threats of bodily harm sufficient to create force and the male actually had intercourse with the female in that set of circumstances and he as a reasonable person knew of this ongoing situation and as an or as a reasonable person should have known of the ongoing situation and the force or threats of force involved he would be chargeable with the use of...