Lewis Taylor appeals from his convictions of three counts of aggravated assault (OCGA § 16-5-21), two counts of criminal trespass (OCGA § 16-7-21), one count of rape (OCGA § 16-6-1) and one count of armed robbery (OCGA § 16-8-41) and from the fact that he was sentenced separately as to some of the counts.
1. Taylor asserts that the trial court erred in denying his plea in abatement which was premised upon his argument that the indictment against him should have been quashed and dismissed upon his showing that he was denied the right to present witnesses at his preliminary hearing; he wanted to call three of the state’s witnesses.
Assuming in the absence of a transcript that Taylor was not permitted to present witnesses at the committal hearing, and even if such denial was error, it would not help appellant here.
“The duty of a court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused and to require him to appear and answer before the court competent to try him. Whenever such probable cause exists, it is the duty of the court to commit.” OCGA § 17-7-23 (a); Neal v.
State,
2. Appellant contends that the verdicts of guilty are not supported by the evidence, that the state failed as a matter of law to prove the charges beyond a reasonable doubt. The record shows otherwise.
Taylor was found guilty of the aggravated assault and armed robbery of Robert and Tracey Shirley and of the criminal trespass of the Shirleys’ apartment. He was also found guilty of the rape and aggravated assault of Carol Burton and of the criminal trespass of her apartment a short distance from and on the same street as the Shirleys’ apartment.
Taking the evidence in a light most favorable to the verdict,
Benson v. State,
The man fled the Shirleys’ apartment with the money from Mrs. Shirley’s wallet as well as with the small gun he had used to threaten the Shirleys. Later, while relating the episode for the police, Mr. Shirley realized that the small gun used and taken by the intruder was actually a starter pistol which Mr. Shirley used on his job and which he had placed in the drawer of the lamp table, next to the side of the bed.
During the episode, the intruder had struck both the Shirleys several times. He hit Mr. Shirley with the pistol and with his fist and Shirley testified that he remembered being struck twice on the head and that he sustained several scratches on his back. Mrs. Shirley testified that her husband had a big scratch on. his face from where the man had initially put the pistol to Mr. Shirley’s face, that she had been hit on the head a couple of times as well with the pistol, and that she had received several scratches from her tussle with the intruder over the rifle.
Mrs. Shirley further testified that she had no problem seeing in her bedroom, even without the bedroom light being turned on, because the room was well lit from the lights of a car lot located behind their apartment. She identified the intruder as being a black man, approximately six feet tall and on that night, “[h]e had grey slacks on. He was dressed really sharp. He had a white shirt on that had kind of a grey thing on the front, either it was a vest or something like that, and he had, he was very clean-cut. He was dressed very sharp.” When asked what color clothing the intruder had on, Mr. Shirley responded, “I saw grey pants, white shirt and greyish-grey vest-like.” At trial, the defendant identified himself as being twenty one years old and six feet, two inches tall.
A police officer testified that a little after 3:00 a.m. on July 22, while he was working a part-time job in the vicinity of the Shirleys’ apartment and prior to his having any knowledge of the Shirleys’ mishap, he was seated in his unit talking with another off-duty officer when he observed a tall (more than six foot) black man run by. The man was coming from the direction of the Shirleys’ apartment and headed towards the location of Ms. Burton’s apartment, which was within walking distance. The officer testified further that the man had on a white and grey shirt. In the courtroom, the officer identified the defendant as the man he had seen running that night.
As to the aggravated assault and rape of Carol Burton and the criminal trespass of her apartment, the evidence at trial showed that during the early morning hours of July 22, Ms. Burton was at home in bed asleep when she woke up and heard something at the window in *627 her bedroom. She looked and saw a man standing there, pointing a gun at her. The man asked Burton whether there was anyone else in the home with her and when she responded that there was no one else there, he climbed in the window; he then took Burton from room to room to be sure that she was alone. The man then brought her back into the bedroom, disrobed, pushed her down on the bed and had sexual intercourse with her. He also put a pillow over Burton’s face, apparently to avoid identification. During this entire time, the intruder retained the gun in his hand. The victim then told the intruder she needed a glass of water and the man accompanied her to the bathroom. They then went back to the bedroom, the man pushed her back down on the bed, laid his arm over her and went to sleep. She lay there a minute, tried to get up after she thought he was asleep, but he woke up, so she waited until he went to sleep again and then got up and went to the apartment across from hers where the neighbors called the police. When the police arrived they found Taylor lying across Burton’s bed, wearing only his socks and with a pistol in his hand. The defendant’s clothes thrown on the floor by the side of the bed were identified by the officer as the same clothes worn by the runner he had seen earlier. They matched the description of clothing given by the Shirleys, and the gun found in the defendant’s hand was later identified as Mr. Shirley’s starter pistol.
A forensic serologist testified that the rape analysis which had been performed on Burton showed the presence of spermatozoa. In addition, part of the pubic combing from the victim was similar in all identifiable characteristics to the sample from Taylor.
There was ample evidence to support Taylor’s convictions.
Jackson v. Virginia,
3. Appellant contends that the trial court erred in sentencing him for both the aggravated assault of Robert Shirley and the armed robbery of the Shirleys in that there was factual merger which is double jeopardy prohibited by OCGA § 16-1-7 (a) (1) and by Art. I, Sec. I, Par. XVIII of the 1983 Georgia Constitution.
Count one of the indictment charged aggravated assault by pointing a pistol, a deadly weapon, at Robert Shirley. Count eight charged armed robbery by taking property of value of Robert and Tracey Shirley, $9, from their immediate presence by use of an offensive weapon, a pistol with intent to commit theft.
Appellant contends that the facts required to prove the aggravated assault on Robert Shirley were identical to the facts required to show the armed robbery of the Shirleys. However, the crime of aggravated assault (OCGA §§ 16-5-21 (a) (2) and 16-5-20 (a) (2)) was completed before Taylor robbed the victims in that he pointed the pistol at him right at the outset, before the trip to the kitchen and the subsequent robbery. Had he left (without Mr. Shirley’s pistol) after com *628 mitting the aggravated assault with the pistol on Mr. Shirley, he would be guilty only of that crime against the person, having used the pistol to assault Mr. Shirley. But he also used it to effect a robbery of both Shirleys, for the money. The indictment bears this out; it did not charge Taylor with assault on Mr. Shirley with the specific intent to rob but rather with the general intent to assault by the offensive use of the pistol and the jury was authorized to consider as to the aggravated assault only a general intent to do the act. The indictment charged armed robbery with the specific intent to commit a theft. The two acts were in fact separate though in close succession.
Applying first the statute, which is the proper order when both statute and constitution are invoked, see
State v. Jewett,
Going next to the constitution, appellant fails to make any argument in support of the constitutional claim. Merely intoning the citation to the portion of the state constitution which prohibits double jeopardy fails to provide us with any basis for concluding that this right has been violated. Inasmuch as he does not address it in argument, the invocation of the state constitution is considered abandoned.
Mitchell v. State,
4. Taylor also raises the same double jeopardy argument with regard to his sentences for both the aggravated assault and the rape of Carol Burton; 1 he maintains that counts four and five of the indictment involved the same transactions.
Count four charged aggravated assault on Carol Burton with a pistol. Count five charged rape of Carol Burton.
Here, the two offenses against the person of Carol Burton were separate and distinct acts as a matter of fact. Physical contact is not required for the crime of aggravated assault.
Tuggle v. State,
*629 5. Though Taylor was convicted of the offenses of criminal trespass of both the Shirleys’ and Ms. Burton’s apartment, he was prosecuted for the burglary of each. He argues that inasmuch as the jury found only criminal trespass, this is inconsistent and repugnant to the guilty verdicts for armed robbery of the Shirleys and the rape of Carol Burton. He reasons that since the jury did not find him guilty of entering the Shirley apartment with intent to commit a felony, armed robbery, nor of entering the Burton residence with intent to commit a felony, rape, then by finding him guilty only of criminal trespass the jury could not properly find he had the requisite intent, in each case, so as to be guilty of armed robbery and rape. Burglary requires entry “with the intent to commit a felony or theft therein.” OCGA § 16-7-1.
Appellant claims that this is the kind of irreconcilable conflict which must lead the court to avoid the jury’s verdict of necessity and in spite of the otherwise unassailable character of jury verdicts. OCGA § 17-9-2;
Jackson v.
State,
The verdicts here are not inconsistent at all. What appellant overlooks is the rapidity with which the human mind can, and often does, change its intention. The jury’s verdicts merely demonstrate that it believed that appellant did not have the intent to commit armed robbery as charged when he, without a gun, entered the Shirleys’ apartment but only acquired such intent after gaining entry to the home and finding the pistol. Likewise, the jury determined that appellant formed the intent to commit rape only after entry into Burton’s apartment, or at least that the evidence did not show beyond a reasonable doubt that he had the intent to rape when he entered.
Giving the verdicts a reasonable construction and intendment, we find no necessity to avoid them.
Judgment affirmed.
Notes
Appellant’s enumerations of error complain only of error in sentencing (which, as a matter of fact, were concurrent as to all counts). In his brief he attempts to enlarge it by complaining of error in the convictions. Actually, the statute he cites prohibits conviction of more than one crime, although prosecution may be for each. OCGA § 16-1-7 (a) (1).