336 S.E.2d 347 | Ga. Ct. App. | 1985
Appellant was convicted of aggravated assault. and rape and appeals.
1. Appellant contends the trial court erred by denying his motion
Shortly after appellant entered the store two men arrived to buy a magazine. As they were approaching the door appellant came out, got on a bicycle and rode away. The men entered the store and while looking at magazines heard a noise in the back of the store. The victim then staggered from the back part of the store, mumbling incoherently. She was nude from the waist up and her jeans and panties were partially pulled down. Blood was on her face, which had been beaten badly, and as she attempted to go outside she fell and was caught by one of the men. One man went for the police, and described appellant and the bicycle to them; an ambulance was called and the victim was taken to the hospital. The bicycle was found the same night and appellant was arrested a day or two later.
Dr. Richard Broadwell examined and treated the victim about 3:00 a.m. the night of the incident, and testified that she was in “a trance like shock state.” The victim had been beaten around the head and face, had many bruises on her face and had a one-inch laceration on her face which required four stitches to close. Seminal fluid was found both inside and outside her vagina, indicating that she had had sexual intercourse within a few hours before the examination.
The victim positively identified appellant as the person who attacked her, and one of the two men who found the victim positively identified appellant as the person who came out of the convenience store and rode away on a bicycle. The second man was 80 percent sure that appellant was the man he saw, and both men identified the bicycle appellant was riding. Appellant denied committing the rape and assault, testifying that he was not in the convenience store and had been at home from about 11:30 p.m. through the rest of the night. His stepfather and mother also testified that appellant came home about 11:30 p.m. and was there the rest of the night.
Appellant argues that evidence of the rape is circumstantial and does not exclude every reasonable hypothesis save that of his guilt. He also argues that there was no evidence of penetration, an essential element of the offense of rape. We do not agree.
Appellant was identified positively as the person who assaulted the victim, and the person who departed the convenience store around the time the rape occurred. He was the only person in the
2. Appellant contends that if his conviction for rape is upheld, his conviction for aggravated assault must be set aside, as a person may not be convicted of both assault and the completed crime of rape. We do not agree.
The evidence shows that the victim was beaten so severely about her face and head that she lost consciousness. When she was discovered she was like a person who was delirious, and she passed out again as she was trying to stagger out the door. The side of her face had been beaten very badly and blood was all down the side of her. When examined by a doctor the victim was in a “trance like shock state,” and had many bruises on her face and a laceration on her cheek which required suturing.
The jury was authorized to find from such evidence that appellant had an intent to murder the victim, as fists can be deadly weapons when used in a certain manner, Harper v. State, 152 Ga. App. 689, 691 (2) (263 SE2d 547) (1979), and the bodily injury alleged in the kidnapping charge was striking the victim in the face with fists. Thus, the jury was authorized to conclude that a portion of the violence was gratuitous and unconnected with the rape. Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978); Sylvester v. State, 168 Ga. App. 718 (2) (310 SE2d 284) (1983). Accordingly, appellant’s contention that the aggravated assault merged with the rape is without merit.
Judgment affirmed.