Rex Allen Weaver was convicted of rape, aggravated assault, burglary, false imprisonment, and possession of a knife during the commission of a felony. A motion for a new trial was granted as to the burglary conviction but denied as to the remaining convictions. This *92 appeal followed.
At trial Weaver admitted that he had gone to the victim’s home carrying a knife under his coat, gained entrance by asking to use her phone, and had sexual relations with her after brandishing the knife; however, he maintained that he believed she had consented. Shortly after the incidents occurred, the victim contacted the police and provided them with a description of her assailant. As a result, two police officers and a GBI agent subsequently appeared at Weaver’s residence, where they identified themselves and were admitted by Weaver. Once inside the residence, the GBI agent informed Weaver that he wished to discuss the reported rape and advised him of his Miranda rights, whereupon, according to the officers, Weaver voluntarily made an incriminating statement to them and then consented to a search of his home, leading them both to the knife which he had brandished earlier in the victim’s home and to a hunting knife which he had also had in his possession. Weaver was arrested at this time and transported to the county jail, where he made a second statement, following another Miranda warning. The clothing which he was wearing was seized, and a penile swab specimen was obtained. Held:
1. Weaver contends that all of the statements and the physical evidence should have been suppressed as the fruit of an unlawful arrest. However, the trial court was authorized to conclude from the evidence that Weaver voluntarily consented to the officer’s entry into his trailer, that he then spoke with them voluntarily after being fully advised of his
Miranda
rights, and that he then voluntarily consented to the search of his residence. Evidence obtained as a result of a lawful consent does not require a warrant in order to be admissible.
Dawson v. State,
2. Weaver contends that the trial court erred in refusing to order a mistrial based on certain comments by the state’s attorney during closing argument having reference to a movie which had been televised the night before the offenses occurred, as well as a statement that an acquittal would have the effect of returning Weaver’s knife to him to be used in a future offense. At the time the motion for mistrial was made, the trial court instructed the jury that there was no evidence of any movie and that they should disregard the state’s attorney’s comments in this regard. The trial court further instructed the jury that they must reach a verdict solely on the basis of the evidence *93 presented and that arguments of counsel were not evidence. These latter instructions were reiterated during the final charge.
A trial court has broad discretion in ruling on a motion for a mistrial, and this court will not disturb such ruling in the absence of a manifest abuse of that discretion which threatens the defendant’s right to a fair trial. See
McCormick v. State,
3. Weaver contends that the trial court’s charge to the jury with regard to intent was unconstitutionally burden-shifting. The trial court’s charge was not phrased in terms of a rebuttable presumption, as was the charge at issue in
Francis v. Franklin,
471 U. S._(105 SC 1965, 85 LE2d 344) (1985), but rather in terms of a permissive inference. Consequently, it was not unconstitutionally burden-shifting. Also, the trial court specifically instructed the jury that “[a] person will not be presumed to act with criminal intention” and further charged that intent was an essential element which the state was required to prove beyond a reasonable doubt. Accordingly, this enumeration of error is without merit. Accord
Lingerfelt v. State,
4. Weaver contends that the trial court erred in denying his motion for a directed verdict of acquittal with respect to the charges of aggravated assault, false imprisonment, and possession of a knife during the commission of a felony, on the ground that these offenses merged with the crime of rape.
By enacting OCGA § 16-11-106, the Legislature has expressly ordained that the possession of a firearm or knife during the commission of a felony “against or involving the person of another” shall be considered a separate offense from the underlying felony. See
Wiley v. State,
The only aggravated assault shown by the evidence, however, was that by which the commission of the rape was effected. Similarly, the only evidence of an unlawful detention was that used to prove the commission of the rape. Where the state “uses up” all the evidence
*94
that the defendant committed one crime in establishing another crime, the former crime must be deemed included in the latter as a matter of fact. See
Haynes v. State,
Judgment affirmed as to rape and possession of a knife during the commission of a felony. Judgment vacated as to aggravated assault and false imprisonment.