437 S.E.2d 651 | Ga. Ct. App. | 1993
Following denial of his motion for new trial, defendant appeals his conviction for rape and burglary. Construing the evidence in the light most favorable to support the verdict, the jury was authorized to find that in the early morning hours of April 15, 1989, .the defendant entered the residence of the victim and raped her repeatedly.
1. Defendant argues the trial court improperly allowed evidence of an alleged similar transaction. Before admitting the similar transaction evidence, the trial court conducted a hearing pursuant to Superior Court Rule 31.3 (B), in which the State made a showing that it
2. Defendant complains that the trial court erred by having communications with the jury in open court when the defendant was not present. The record reflects that after the jury had deliberated approximately one-and-one-half hours, they sent a note to the judge saying “[W]e cannot come to an entire conclusion. What do we do?” Upon receiving the note, the trial judge called counsel for both sides to the bench and suggested that because it was late in the afternoon, the jury be sent home for the day and brought back tomorrow. Counsel for both sides agreed to that procedure. The trial judge then asked if defense counsel waived the presence of the defendant and he responded, “Defense waives the defendant’s presence.”
It is well-settled that the defendant on trial must be present when the court takes any action materially affecting his case. There must be no communication that would tend in any manner to prejudice the defendant and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, it is presumed to be prejudicial. Hurston v. State, 206 Ga. App. 570 (2) (426 SE2d 196) (1992). The record clearly shows that the communication between the trial court and the jury in defendant’s
3. Defendant argues the trial court erred in charging the jury that aggravated assault with intent to rape could serve as the underlying felony to support the defendant’s conviction for burglary because the indictment which charged him with burglary stated that the underlying felony was rape. However, it can be determined from the verdict form that the jury in this case found the underlying felony of which defendant was guilty to be rape rather than aggravated assault with intent to rape. Accordingly, if this charge was error, it is at most harmless error under the facts of this case and does not authorize reversal of defendant’s conviction. Cf. Peters v. State, 261 Ga. 373 (3) (405 SE2d 255) (1991) (impossible from the verdict to tell what the jury considered to be the underlying felony). See also Hardy v. State, 159 Ga. App. 854, 859 (285 SE2d 547) (1981) (“ ‘An assault, or assault and battery, is necessarily involved in every case of rape. (Cits.) In all cases where the defendant is charged with rape, and where the evidence under any view thereof, would authorize a conviction for a lesser offense necessarily involved in the graver charge, the jury should be instructed that he may be convicted of the lesser offense. (Cit.) . . .’ [Cit.]”).
4. We find no merit in defendant’s argument that the jury charge taken as a whole denied him due process, shifted the burden of proof, and negated any charge on reasonable doubt. Our review of the charge in this case reveals that the jury was properly instructed on the State’s burden of proof and that the burden of proof never shifts to defendant. The charge on reasonable doubt does not contain any of the language which required a finding that the subject charge was constitutionally deficient in Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990) (per curiam) and Sullivan v. Louisiana, 508 U. S. _ (113 SC 2078, 124 LE2d 182) (1993). Furthermore, defendant’s argument that the use of the term “duty to convict” constitutes reversible error has been decided adversely to defendant by our Supreme Court in Sutton v. State, 262 Ga. 181 (2) (415 SE2d 627) (1992).
5. Defendant also challenges the denial of his motion for new trial on the general grounds. The victim testified that she had a sufficient opportunity to observe the rapist and identified defendant as the perpetrator. Also, the State presented evidence that defendant’s finger
Judgment affirmed.
Defendant does not argue that his counsel did not have his permission to waive his presence or that he failed to later acquiesce in the waiver of his presence. See Williams v. State, 251 Ga. 749, 798 (312 SE2d 40) (1983).