Ross v. StateRoss v. State
- Reporters:
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- Before:
- Birdsong
Aрpellant, Donald Eric Ross a/k/a Donald Eric Adams, appeals his sentence and conviction of rape and aggravated sodomy and the order of the trial judge denying his motion for new trial.
The alleged victim testified that she was raped and sodomized, by force and without her consent, by appellant. Appellant testified that the alleged victim had consented to engaging in sexual intercourse with him.
Following trial, on July 13, 1989, appellant was appointed a new counsel, hereinafter called appellate defense counsel, who immediately filed a motion for new trial asserting only the general grounds and that the trial court erred in failing to sever the offenses. The record does not contain any amended motions for new trial; however, it does reflect that on July 12, 1989, the trial judge issued a show cause order and supersedeas based on the motion for new trial. Sentence was formally entered against appellant on June 19, 1989. A hearing ultimately was held upon the motion for new trial, although no hearing transcript pertaining thereto has accompanied this record. By order filed November 16,1989, the trial court denied appellant’s motion for new trial. Held:
1. Appellant asserts that there was insufficient evidence to convict him of rape and aggravated sodomy. On appeal the evidencе must be viewed in the light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witnеss credibility. Smith v. State, 192 Ga. App. 768 (1) (386 SE2d 530); Watts v. State, 186 Ga. App. 358 (1) (366 SE2d 849).
a. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).
b. Regarding the offense of aggravated sodomy, we find that a fаtal variance exists between the allegata and the probata. The indictment avers that appellant committed aggravated sodomy in one manner and in one manner only, that is, “by putting his mouth to the sex organ of [the alleged victim]. . . .’’At trial both the victim and apрellant denied that appellant committed sodomy upon the victim in this manner. Rather, the victim testified that appellant forced her to
This case is distinguishable from those cases in which an indictment avers several different manners in which the offense wаs committed, and there exists evidence sufficient to support a finding of guilt as to one of these averred manners (e.g., Lubiano v. State, 192 Ga. App. 272 (1) (a) (384 SE2d 410)); and, those cases where an appellant was an aider and abettor to the crime as averred (e.g., Carter v. State, 168 Ga. App. 177 (3) (308 SE2d 438)). In this case, appellant wаs the only averred perpetrator and only one manner of crime commission was averred.
While an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute descriрtion of a necessary fact must be proved as charged. See generally Kelly v. State, 188 Ga. App. 362 (2) (373 SE2d 63), citing Bell v. State, 227 Ga. 800, 802 (1) (183 SE2d 357). “ ‘If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. . . . [N]o averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or thе failure to prove the same as laid will amount to a variance. (Cits.) ... To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance. . . . (Cits.)’ ” (Emphasis supplied.) Roberson v. State, 187 Ga. App. 485, 487 (370 SE2d 661); Accord Fulford v. State, 50 Ga. 591, 593; Hamby v. State, 76 Ga. App. 549, 554 (2) (46 SE2d 615); Ga. Crim. Trial Prac., § 20-14 (1989 ed.), and cases therein cited. Accordingly, we find that there exists insufficient evidence, within the meaning of Jackson v. Virginia, supra, from which a rational trier of fact could conclude that appellant committed the offense of aggrаvated sodomy as averred.
2. This court cannot consider factual representations contained in appellate briefs when such evidence does not appear on the record (Hudson v. State, 185 Ga. App. 508 (1) (364 SE2d 635)), and a brief or an attachment thereto cannot be used in lieu of the record or transcript for adding evidence to the record (Williams v. State, 193 Ga. App. 677, 678 (388 SE2d 893)).
3. Appellant has made two separate enumerations of error based on the grounds of ineffective assistance of his trial defense counsel. Subsequent to trial, a new counsel entered appearance and was duly appointed as appellant’s counsel. New counsel immediately filed a
4. Appellant contends that “[a]ppellant’s trial [defense] counsel failed to make the State prove the proper chain of custody for introduction of the rape kit used in examining the alleged victim,” and that he was denied a fair trial thereby. Tо the extent that this enumeration could be construed to assert an ineffective assistance of counsel claim, we will not consider it. See Division 3 above. Moreover, the enumeration of error does not include an assertion of ineffective assistanсe of counsel and an enumeration of error cannot be enlarged by brief on appeal to cover issues not contained in the original enumeration. Vinson v. State, 190 Ga. App. 676 (3) (379 SE2d 792).
Trial defense counsel initially objected to introduction of the rape kit and certain other State exhibits on the grounds that a proper chain of custody had not been shown by the State, after the testi
Moreover, assuming arguendo error of constitutional magnitude had occurred as asserted in appellant’s brief (denial of a substantive due process fair trial right), we are satisfied beyond a reasonable doubt that such error would be harmless. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38). In this regard, for reasons stated in Division 1 (a) above, we must reverse appellant’s conviction of aggravated sodomy. Regarding the remaining rаpe charge, appellant made admissions in judicio that he had twice engaged in sexual intercourse with the victim and that the victim had bled, had gotten her blood upon appellant, and had used appellant’s underclothing to wipe blood off herself. In view of appellant’s in-court admissions and the overwhelming evidence of his guilt of rape, we are also satisfied that no fair risk existed that he was deprived of his right of fair trial by the introduction of this evidence. “Justice is not served by reversing criminal convictions when error is harmless — an accused is entitled only to a fair trial, not a perfect one.” Butts v. State, 193 Ga. App. 824, 828 (389 SE2d 395).
5. Appellant asserts that “[a]ppellant’s trial counsel failed to properly introduce into evidence records of the [a]ppellant’s physical condition which would have shown the jury that [a]ppellant had a severely damaged right arm.” Specifically appellant claimed that if the medical records had been properly introduced, the jury would have learned that appellant had suffered paralysis to his right side in 1983; that he had undеrgone physical therapy, and that he has limited use of his right arm.
At the onset for the same reasons as stated in Division 4 above, we will not consider this enumeration as raising any appellate issue of ineffective assistance of counsel on appeal. Sеe Divisions 3 and 4 above; Vinson, supra.
Moreover, this enumeration does not contain any assertion that the trial judge erred in failing to admit any physical therapy medical records pertaining to appellant. Accordingly, this issue also is not before us on appeal. Vinson, supra. An enumeration of error cannot be enlarged to include other issues not made therein. Reese v. State, 139 Ga. App. 630 (3) (229 SE2d 111).
Assuming, without deciding, that the trial defense erred in failing to present another witness to lay a further foundation for admission of the medical records as business records, we find that suсh error, even if rising to the level of constitutional magnitude as asserted by appellant, was harmless beyond a reasonable doubt.
Palmer,
supra.
We also note that the record is reрlete with evidence presented to the jury regarding the physical limitations suffered by appellant as a result of a prior injury. A physical therapist for the Division of Rehabilitative Services in Columbus was allowed to testify as to how appellant was injured; that appellant was handicapped as a result; that the medical records indicated the injury resulted in paralysis to appellant’s right side; and that appellant is not completely paralyzed, but has limited use of his right hand and can move his arm with limitations. This testimony was presented in the presence of the jury, and neither was it stricken from the record nor was the jury instructed to disregard it. Appellant’s sister testified that appellant does not have any use of his right hand. An acquaintance of appellant testified that appellant walks with a limp and that he carries his arm as though it were parаlyzed. Appellant testified, denying the rape, and asserted that he had arm spasms at the alleged crime scene. Inherent in appellant’s testimony was the claim that he could not have committed a rape in the manner contended by the victim. Appellant also testified that, as a result of his prior injury, he had “sustained a paralysis in [his] right arm, [his] right hand, [his] right leg, [his] right foot”; and, that his “strength was taken away”; he no longer has manual dexterity in both hands; that his “equilibrium was . . . shot”; and that he receives Social Security benefits for disability.
In view of the posture of the rеcord in this case, we find this enumeration of error is without merit, and that assuming without deciding error occurred, it was harmless.
For the reason stated in Division 1 above, the conviction for aggravated sodomy must be reversed, and appellant resentenced; however, аppellant’s conviction of rape is affirmed.
Judgment of conviction of rape affirmed; judgment of conviction of aggravated sodomy reversed; sentence reversed and case remanded with direction.
Banke, P. J., and Cooper, J., concur.