Cross v. State

354 Ga.App. 355

839 S.E.2d 265

CROSS

v.The STATE.

A19A2291

Court of Appeals of Georgia.

February 20, 2020

Clifford Louis Kurlander, for Appellant.

Sherry Boston, Decatur, Deborah D. Wellborn, for Appellee.

Gobeil, Judge.

Following a jury trial in 2016, Donovan Lewis Cross was convicted of rape and aggravated sodomy. The trial court denied his motion for new trial, and Cross now appeals, asserting the trial court erred in admitting evidence of two other offenses pursuant to OCGA §§ 24-4-404 (b) and 24-4-403 because they were not relevant as to motive, intent, or rebutting consent, and any probative value of the evidence was substantially outweighed by the danger of undue prejudice. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

Williams v. State , 333 Ga. App. 879, 879, 777 S.E.2d 711 (2015) (citation and punctuation omitted). So viewed, the evidence shows that in March 2009, the victim lived in a lower level unit of an apartment complex in DeKalb County. During the early morning hours of March 5, 2009, the victim returned to her apartment after finishing work at midnight. She ate, watched television, and then went to bed. The victim later awakened and saw an unknown man, dressed only in his boxer shorts, standing over her in her bedroom. The victim did not know how the intruder gained access to her apartment, as she kept her doors locked and her windows closed. The victim, not expecting a visitor, panicked and tried to run out of the room, but the intruder stopped her from leaving. The victim recalled that the man, later identified as Cross, told her that he had been watching her through a window. The victim described feeling afraid as she "didn’t know whether or not [she] was going to lose [her] life. [She] went to sleep, nobody was there, [she] woke up, somebody was standing over [her]. [She] didn’t know if [she] was going to make it."

Cross told her that he did not intend to hurt her so long as she did not "do anything," and he only wanted to perform oral sex on her.

Cross forced the victim to have oral sex by placing his mouth on her vagina, despite her pleading with him not to "do this," and that she "didn’t want to do it." Cross then grabbed the victim’s hand and put it on his penis, on which he had rubbed some baby oil that he found in the victim’s room. Cross told the victim that if she touched and rubbed his penis for a few minutes, he would leave. Instead of leaving, however, Cross told the victim that he wanted to sleep with her for a few minutes and then he would leave. The victim continued to beg Cross to stop and "pleaded for him not to go any further." When the victim realized that he was not going to stop, she asked him to get a condom. Cross then put on a condom, climbed on top of the victim, and penetrated her vagina with his penis. The victim continued to plead with Cross to stop. The victim did not physically fight back as she "just wanted to do everything [she] could do to ensure that [she] made it." Cross ejaculated in the condom. After raping the victim, Cross got up and went to the bathroom and the victim heard the toilet flush. Cross then left the apartment.

After Cross exited the apartment, the victim ran to the front door and locked it, and then went into the bathroom, retrieved the condom from the toilet, and placed it in a ziploc bag. She also "bagged up" the condom wrapper, the box of condoms, and the bed sheets because she "wanted whoever did that to [her] to be caught." The victim then called a friend and told her what had happened. The friend recalled that the victim was "very upset" and said that she had been raped. The victim did not feel safe in her own apartment so she went to her friend’s apartment. When she arrived at the friend’s apartment, she was "visibly upset" and crying. The victim’s friend called the police to report the rape because the victim was "fearful" and did not want to call police. The victim recounted the ordeal in a statement to police and handed over the evidence she had collected at her apartment. The responding officers described that the victim appeared upset and looked like she had been crying. The police accompanied the victim back to her apartment to collect evidence.

Later that same day, the victim went with her friend to the hospital for a sexual assault examination. The victim recounted to medical personnel that Cross had used a condom. The sexual assault nurse observed that the victim was "[q]uiet, trembling [and] tearful." Although no external injuries were reported, the sexual assault nurse testified that vaginal injuries are not common due to the nature of the tissue in that area, and she did not expect to find any tears or bruises based on the fact that lubrication was used, "which would further facilitate entry without tearing or without overstretching the [vaginal] tissue."

The victim subsequently identified Cross in a photo lineup as her attacker. Testing of sperm cells found on both the inside and outside of the condom recovered from the victim’s apartment matched to the same male profile. The DNA profile yielded a positive match to Cross.

Based on the foregoing, Cross was charged by indictment with one count each of rape and aggravated sodomy.¹ At trial, Cross’s defense was that the sex was consensual. Specifically, he contended that there was no evidence of forced entry into the victim’s apartment; Cross agreed to use a condom; a lubricant was used during sex; Cross gave the victim a massage prior to sex; and Cross never slapped or tied up the victim or restrained her in any way, and there was no evidence that he had any sort of a weapon. Moreover, Cross argued that, although the victim was allowed to use the bathroom alone, she never made any effort to escape, nor did she try to call the police when Cross went to the bathroom to flush the condom in the toilet even though she had access to both a landline and her cellphone in the bedroom. Cross also attempted to impeach the victim by highlighting her financial interest in a civil lawsuit against her apartment complex. Specifically, the victim retained an attorney soon after the incident and filed a lawsuit against the apartment complex less than two weeks later, in which she sought monetary damages.

The jury ultimately convicted Cross of rape and aggravated sodomy. The trial court sentenced Cross to a total term of life imprisonment with the possibility of parole. Cross filed a motion for new trial, as amended, which the trial court denied.² The instant timely appeal followed.

1. Although Cross does not challenge the sufficiency of the evidence as a separate enumeration of error, we have independently reviewed the record and conclude that the evidence presented at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. See Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Here, the victim testified that Cross entered her apartment without her permission while she was sleeping and forced her to engage in oral sex and vaginal intercourse against her will. This evidence is sufficient to sustain his convictions for rape and aggravated sodomy. See OCGA § 16-6-1 (a) (1) ("A person commits the offense of rape when he has carnal knowledge of ... [a] female forcibly and against her will[.]"); OCGA § 16-6-2 (a) (1) (Sodomy is defined as "any sexual act involving the sex organs of one person and the mouth or anus of another."); OCGA § 16-6-2 (a) (2) ("A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person[.]").

In the first instance, we note that "[t]he testimony of a single witness is generally sufficient to establish a fact." OCGA § 24-14-8. See Garner v. State , 346 Ga. App. 351, 355 (1) n.12, 816 S.E.2d 368 (2018) (victim’s testimony alone is sufficient to support a conviction of rape, and corroborating evidence is not required). Although Cross contended that the acts were consensual, the victim unequivocally testified that Cross forced her to engage in oral and vaginal sex against her will and prevented her from trying to get away. Moreover, the record shows that individuals who observed the victim soon after the attack, including her friend, police officers, and medical personnel, testified that the victim was clearly upset and distraught after the attack. "Resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court." McNeely v. State , 296 Ga. 422, 425 (1), 768 S.E.2d 751 (2015) (citations and punctuation omitted). Thus, we conclude there was sufficient evidence to support Cross’s convictions for rape and aggravated sodomy.

2. Cross asserts that the trial court erred in admitting evidence of two other offenses pursuant to OCGA §§ 24-4-404 (b) and 24-4-403. In a pretrial filing, the State notified Cross of its intent to introduce evidence of multiple other offenses to show motive, intent, and to rebut his defense of consent. Following a hearing,³ the trial court allowed evidence of four of the other acts. At trial, the State presented evidence of only two of the other acts, a May 2008 incident in which Cross was seen facing the window of a home with his hands on his pants, and a 2015 incident where a female detention officer observed Cross masturbating in an open area of a jail.

At trial, a sergeant with the DeKalb County police department testified that he responded to a call on May 23, 2008, about a suspicious person seen walking behind a row of townhouses. After making contact with the resident that...