158 Ga. App. 309 | Ga. Ct. App. | 1981
Appellant was indicted for the offense of “kidnapping with bodily injury.” The indictment further alleged in some detail that the accused abducted the victim at gunpoint, holding her against her will, and that during the course of the kidnapping the victim was forcibly raped, sodomized and beaten. The victim testified that these events occurred during the course of the kidnapping because she was in fear of her life. Appellant testified that the victim willingly accompanied him and performed the sexual acts, and that he did not threaten her with a gun or beat her. The jury returned a verdict of guilty, which is appealed. We affirm.
1. Prior to trial appellant filed a demurrer to the indictment on the grounds that the offense of “kidnapping with bodily injury” is not cognizable under Georgia law and that the language referring to rape and aggravated sodomy was inappropriate, harmful and prejudicial and had the effect of charging appellant with two separate and distinct crimes other than the one for which he was indicted. This argument is without merit.
“Kidnapping with bodily injury” is a criminal category specifically provided by Code Ann. § 26-1311 (b). That the state may allege in the indictment the way and manner in which bodily harm was inflicted upon the kidnap victim was established in Henderson v.
2. Appellant’s contention that the trial court improperly precluded his right to cross examine the victim about her prior sexual conduct and whether she had smoked marijuana before the incident is without merit. While the victim testified that the appellant raped her twice and brutally attempted to sodomize her, the appellant was not charged with these offenses because they apparently occurred in another county. Appellant concedes that such evidence would be inadmissible under Code Ann. § 38-202.1 had he been tried for rape, but asserts that the victim’s past experiences were relevant to his defense against the kidnapping charge, that she willingly consented to accompany him in order to smoke a “joint” and engage in oral sex. The question asked the victim, however, was whether she had had sexual experiences with anyone prior to the incident. Since both the victim and the appellant testified that they had not previously met, the only information to be elicited from this question would be whether the victim had ever had sex with any men other than the defendant. The reasoning behind the inadmissibility of such evidence in rape cases “for either impeachment purposes or on the issue of consent... is that her consent in the case of one man does not imply consent in the case of another.” Lynn v. State, 231 Ga. 559 (1) (203 SE2d 221) (1974). See also Jenkins v. State, 156 Ga. App. 387 (5) (274 SE2d 618) (1980). Because the alleged rapes and aggravated sodomy constituted evidence of the bodily injury here, their proof was as relevant to the kidnapping conviction as though the appellant had been charged with those offenses. Since proof of rape was proof of bodily injury, the reasons why evidence of prior sexual experience is not permitted by Code Ann. § 38-202.1 are equally applicable in this case.
The evidence here did not support an inference that appellant could have reasonably believed the victim consented to his conduct, nor were other statutory requirements met for introducing any
3. Appellant argues that his motion for directed verdict of acquittal should have been granted under the rationale of L. C. v. State of Ga., 151 Ga. App. 307 (259 SE2d 702) (1979), as follows: “Where the evidence tends to sustain two inconsistent propositions, neither can be said to have been established by legitimate proof.” That case is not pertinent here, dealing as it did with the sufficiency of circumstantial evidence to sustain a finding of delinquency. Rather we are bound by the oft-stated rule that “ ‘[I]t is only where the evidence demands a verdict of not guilty that it is error for the trial court to refuse to grant a motion for a directed verdict of acquittal. [Cit.]’ Muhammad v. State, 243 Ga. 404, 407 (254 SE2d 356). The trial court did not err as the evidence was in conflict and did not demand a verdict of not guilty.” Hendrix v. State, 153 Ga. App. 791, 792 (1) (266 SE2d 568) (1980).
Judgment affirmed.