Bass v. State

356 Ga.App. 862

849 S.E.2d 718

BASS

v.The STATE.

A20A0791

Court of Appeals of Georgia.

October 5, 2020

Cynthia Wright Harrison, for Appellant.

Paul L. Howard Jr., Atlanta, Dustin Jeremiah Lee Lee, for Appellee.

Miller, Presiding Judge.

A Fulton County jury convicted Christopher Bass of two counts of aggravated sodomy, ten counts of possession of a firearm during the commission of a felony, three counts of armed robbery, three counts of aggravated assault with intent to rob, two counts of rape, two counts of aggravated assault with intent to rape, two counts of aggravated assault, and one count of aggravated battery. Bass appeals from his convictions arguing that (1) the evidence was insufficient to support his convictions; and (2) the trial court erred by excluding evidence from trial pursuant to the rape shield statute. We conclude that the evidence was sufficient to sustain Bass’ convictions and that the trial court did not err by excluding evidence under the rape shield statute. We therefore affirm.

Viewed in the light most favorable to the verdicts,¹ the evidence adduced at trial shows that on one day in 2008 or 2009, Lisa Johnson was standing outside of the Intown Suites when a dark-colored car pulled up to her. After she got into the car, the driver, whom she later identified as Bass, told her that he had $70 and he proceeded to drive to the back of a nearby building. After reaching the rear of the building, Bass pulled out a gun from the driver's side door, put the gun to her head and said, "do everything I tell you to do and I won't kill you." Bass then told her to take off her clothing and jewelry and to place her cell phone and any money she had in the center console, and he then told her to stand outside of the car. After exiting the vehicle, Johnson ran away, but Bass caught up to her and brought her back by the building. Bass then made her get down on her knees, forced her to perform oral sex, and then hit her in the face during the act. Bass then stood her up, bent her over the hood of the car, vaginally penetrated her, ejaculated in her mouth, and fled the area. A passing car picked up Johnson and took her back to the Intown Suites. Johnson later identified Bass from a photo line-up with the police and also identified him during the trial.

Kiya Dossie testified that she went to a party on the evening of May 31, 2009. Dossie left the party after an argument with a man and began walking home. While walking along a roadway, Bass pulled up to her and offered her a ride home. After she got into the car, Bass drove to a parking lot behind an automotive store and pulled out a gun. Dossie and Bass scuffled inside the car before he pulled her out of the car to a nearby flight of stairs and hit her in her head. At the stairs, Bass tried to force her to perform oral sex while holding the gun in his hand. According to Dossie, Bass’ penis touched her lips but did not enter her mouth. Dossie acknowledged, however, that she wrote a statement on her photographic line-up with the police that Bass forced her to perform oral sex. Bass then took Dossie's clothing, her cell phone, and her purse which contained $120 and fled from the area. Dossie later identified Bass from a photo line-up with the police and also identified him at trial.

Adrenna Ware testified that on February 21, 2009, she was at the Fulton Inn and observed a red car with tinted windows and that its driver, whom she later identified as Bass, was trying to get her attention to speak with her. Bass spoke with her and told her "what he wanted," and they negotiated a price for sex. After agreeing on a price, Bass entered her hotel room and asked to use the bathroom. After using the bathroom, Bass walked up to her with a gun and told her that he would kill her if she moved. Bass pushed the gun towards her, told her to lie on her stomach in the bed, and proceeded to "rape" her. Bass then told her that he would kill her if she moved. Bass took her cigarettes, cell phone, and money and left her room. Ware identified Bass from a photographic line-up and also identified him during trial.

Bass was indicted on two counts of aggravated sodomy ( OCGA § 16-6-2 ), ten counts of possession of a firearm during the commission of a felony ( OCGA § 16-11-106 ), three counts of armed robbery ( OCGA § 16-8-41 ), two counts of rape ( OCGA § 16-6-1 ), three counts of aggravated assault with intent to rob ( OCGA § 16-5-21 ), two counts of aggravated assault with intent to rape ( OCGA § 16-5-21 ), two counts of aggravated assault ( OCGA § 16-5-21 ), and one count of aggravated battery ( OCGA § 16-5-24 ). The jury convicted Bass of all counts. The trial court imposed a life sentence for Bass’ aggravated sodomy and rape convictions, four concurrent 20-year sentences for his aggravated battery, armed robbery and aggravated assault convictions, two consecutive life sentences for one rape conviction and one aggravated sodomy conviction, and a five-year consecutive sentence to his life sentence for each of his possession of a firearm during the commission of a felony convictions.² Bass filed a motion for new trial, which the trial court denied after a hearing. This appeal followed.

1. First, Bass argues that the evidence was insufficient to sustain his convictions. Specifically, Bass argues that (1) the evidence was insufficient for the crimes involving Lisa Johnson because the State failed to prove that the crimes involving Lisa Johnson occurred on the date specified in the indictment; (2) the State failed to prove that he committed aggravated sodomy against Kiya Dossie because there was a fatal variance between the allegations in the indictment and the evidence presented at trial, and the State failed to prove that he committed armed robbery because it failed to prove that he used a weapon to effectuate the taking of her property; and (3) the State failed to prove that he raped Adrenna Ware and that he used a weapon to effectuate the taking of her property. We disagree with all of Bass’ arguments and conclude that the evidence was sufficient to sustain his convictions.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Citation omitted.) Smith v. State , 348 Ga. App. 643, 643-644, 824 S.E.2d 382 (2019).

(a) Victim Johnson

As to Bass’ argument that the evidence was insufficient to sustain his convictions involving Johnson because the State failed to prove that the offenses occurred within the range of dates listed in the indictment,

[i]t is a longstanding principle of Georgia law that a date or range of dates alleged in an indictment, without more, is not a material allegation of the indictment, and, consequently, unless the indictment specifically states that the alleged dates are material, the State may prove that the alleged crime was committed on any date within the statute of limitation.

(Citations omitted.) Thomas v. State , 352 Ga. App. 640, 642 (1) (a), 835 S.E.2d 640 (2019). Rephrased, "except where the exact date of the offense is alleged to be an essential element thereof or where the accused raises an alibi defense, any variance between the date listed in the indictment and the date on which the crime is proven to have occurred is of no consequence." (Citation omitted.)

Picklesimer v. State , 353 Ga. App. 718, 724-725 (3), 839 S.E.2d 214 (2020).

Here, the State alleged that Bass committed aggravated sodomy, possession of a firearm during the commission of a felony, armed robbery, aggravated assault with intent to rob, rape, aggravated assault with intent to rape, and aggravated assault against Johnson between November 1, 2008 and November 30, 2008. The dates were not alleged to be essential elements in the indictment, and Bass never raised an alibi defense at trial.³ Because the dates of the incidents were not an essential element of the offenses, we reject Bass’ argument that the evidence was insufficient to sustain his convictions on this basis. See Picklesimer , supra, 353 Ga. App. at 725 (4), 839 S.E.2d 214 (rejecting the defendant's argument that the evidence was insufficient to sustain his convictions where the dates alleged in the indictment were not essential elements in the indictment).

(b) Victim Dossie

Next, Bass argues that the evidence was insufficient to show that he committed aggravated sodomy and armed robbery against Kiya Dossie. Specifically, he argues that there was a fatal variance because the indictment alleged that he committed aggravated sodomy by placing his penis on and into Dossie's mouth, but the evidence at trial showed only that he placed his penis on Dossie's mouth. He also argues that he did not commit armed robbery against Dossie because the State failed to prove that he used a weapon to effectuate the taking of Dossie's property. These arguments are unavailing.

Georgia law defines sodomy as any sexual act involving the sex organs of one person and the mouth or anus of another. A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age. Therefore, the crime of aggravated sodomy has three elements: (1) an act of sodomy; (2) with force; and (3) against the will of another.

(Citations and punctuation omitted.) Handley v. State , 352 Ga. App. 106, 107, 834 S.E.2d 114 (2019). Additionally, "when an indictment charges that a crime was committed in more than one permissible way — as in this case by the use of the conjunctive ‘and’ — proof at trial that the crime was committed in one of the ways expressed in the indictment is sufficient to sustain the...