Opinion
71409.
DECIDED JANUARY 7, 1986. REHEARING DENIED FEBRUARY 12, 1986.
Aggravated assault, etc. Fulton Superior Court. Before Judge Jenrette.
Carl P. Greenberg, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Harvey W. Moskowitz, Assistant District Attorneys, for appellee.
Defendant was convicted of theft by taking and aggravated assault (with intent to rape) and this appeal followed. Held:
1. The defendant and the victim resided in the same apartment complex. The victim testified that she awakened in the early morning hours to find that the drapes covering her bedroom window had been opened allowing a bright light to enter from outside, and that defendant was standing over her with a knife in his hand. She further stated she was able to see defendant clearly as he leaned over to touch her; that defendant said he would stab her unless she did what he wanted; and that she had sufficient time to scrutinize defendant. She testified further that a sum of money had been taken from her purse during the night; that she saw defendant standing outside of her apartment a few hours after she was assaulted and recognized him immediately; and that she positively identified defendant shortly thereafter when an apartment security guard brought him by her apartment for identification. There was additional evidence that defendant's physical characteristics fit the description which the victim first gave to police; that a search of the apartment complex was made by the apartment security guard only minutes after the assault; and that no persons were seen in the vicinity of the complex at that time.
In his first enumeration of error, defendant contends the evidence was insufficient to support the verdict. In this regard, defendant argues that the victim's identification testimony was not sufficient to establish defendant's guilt beyond a reasonable doubt. We disagree. The evidence was sufficient to authorize a rational jury to find defendant guilty beyond a reasonable doubt of theft by taking and aggravated assault (with intent to rape). Dumas v. State, 162 Ga. App. 66 ( 290 S.E.2d 180); Quong v. State, 157 Ga. App. 532 (1) ( 278 S.E.2d 122). See Fair v. State, 172 Ga. App. 49, 50 (3) ( 321 S.E.2d 790). Contrary to defendant's assertion, the identification testimony of the victim was admissible and reliable. See generally McClesky v. State, 245 Ga. 108, 111 ( 263 S.E.2d 146).
2. Defendant contends the trial court erred in denying his motion for directed verdict of acquittal because the proof of intent to rape was insufficient. This contention is without merit.
At the time of the assault, the victim was lying in her bed and was clothed only in a nightgown. Defendant loomed over the victim held up a knife and said: "Bitch, if you don't let me do what I want to do then I'm going to kill you and your baby. I'm going to stab you thirteen times." Then defendant reached for the victim. The victim screamed and defendant fled.
"A trial court must grant a motion for directed verdict unless, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (99 SC 2781, 61 L.Ed.2d 560)." Lee v. State, 247 Ga. 411, 412 (6) ( 276 S.E.2d 590). See Humphrey v. State, 252 Ga. 525, 526 (1), 527 ( 314 S.E.2d 436). Viewing the evidence in the light most favorable to the State, we conclude that the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that defendant intended to rape the victim. "It is not necessary for the state to show that appellant expressed an intent to [rape] in so many words, or declared a purpose to carry the intent into effect, for the jury to arrive at the conclusion he so intended. The intention may be gathered from the circumstances of the case as proved." Fears v. State, 152 Ga. App. 817, 820 (2) ( 264 S.E.2d 284).
3. The indictment charged defendant "with the offense of AGGRAVATED ASSAULT WITH INTENT TO RAPE, for that said accused, in the County of Fulton, State of Georgia, on the 23rd day of June, 1984 did unlawfully commit an assault upon the person of [the victim], a female, and did strike and beat and lay his hands upon said female, all with intent to have carnal knowledge of and connection with said female, forcibly and against her will . . ." Defendant contends the court should have granted his motion for directed verdict of acquittal because the State failed to prove that the victim's assailant laid his hands upon her in any manner. This contention is erroneous.
"When an indictment charges a crime was committed in more than one way, proof that it was committed in one of the separate ways or methods alleged in the indictment makes a prima facie case for jury determination as to guilt or innocence. See Jones v. State, 75 Ga. App. 610 (4), 615 ( 44 S.E.2d 174); Leverenz v. State, 140 Ga. App. 632, 634 ( 231 S.E.2d 513)." Henry v. State, 154 Ga. App. 120 (1) ( 267 S.E.2d 653). Here the indictment alleges that defendant assaulted the victim and that he beat her, etc., all with an intent to rape. In view of the conjunctive form of the indictment, it was not incumbent upon the State to prove that defendant physically struck or touched the victim.
The evidence demonstrated that defendant assaulted the victim with intent to rape, as alleged in the indictment. Thus, the trial court did not err in denying the motion for directed verdict of acquittal on the ground that the evidence failed to show defendant beat or struck the victim. Henry v. State, 154 Ga. App. 120 (1), supra; Mitchell v. State, 154 Ga. App. 399 (2) ( 268 S.E.2d 360). See Humphrey v. State, 252 Ga. 525, 526 (1), 527, supra.
4. Defendant's contention that the trial court erred in refusing to permit him to put the results of a polygraph test in evidence is without merit. First, we note that defendant failed to make an offer of proof of the results of the test. Thus, it is difficult, at best, to rule upon defendant's contention. See American Family Life Assur. Co. v. Welch, 120 Ga. App. 334, 340 ( 170 S.E.2d 703). Second, even if such an offer of proof had been made we would find no error because the State did not stipulate to the admissibility of the test results. "Absent an express stipulation by the State and the accused that the results of a polygraph test will be admitted in evidence, the results are inadmissible." Willis v. State, 249 Ga. 261, 265 ( 290 S.E.2d 87). See Feltham v. Cofer, 149 Ga. App. 379, 380 (1), 381 ( 254 S.E.2d 499). The requirement set forth in McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981) (prosecutor must give "valid reasons" for refusal to stipulate polygraph test admissibility), has been rejected by our Supreme Court and the Eleventh Circuit Court of Appeals. Willis v. State, 249 Ga. 261, supra; Jones v. Weldon, 690 F.2d 835 (11th Cir. 1982).
5. During cross-examination, defendant was asked whether he had seen an automobile belonging to the victim's husband on the night in question. He responded: "I don't know sir. I don't go looking for trouble for one thing. Let's get that understood." Based upon this statement and defendant's testimony on direct examination that he was gainfully employed, defendant requested a charge on good character. Error is enumerated upon the denial of that request.
We agree with the trial court that defendant's testimony was not sufficient to raise the character issue. Unlike Braddy v. State, 172 Ga. App. 386 ( 323 S.E.2d 219), aff'd 254 Ga. 366 ( 330 S.E.2d 338), defendant in the case sub judice did not state he had never been charged with wrongdoing before, and neither did he state that he was active in his church, taught Sunday School, or was an associate minister of youth. He merely stated, in effect, that he works and minds his own business. These averments by the defendant in the case sub judice can hardly be said to constitute evidence of good character. Neither averment provides a key to an individual's moral fiber. See generally Conner v. State, 160 Ga. App. 202, 203 (5) ( 286 S.E.2d 441). Compare Phillips v. State, 168 Ga. App. 629, 630 (3) ( 310 S.E.2d 259). Accordingly, the trial court did not err in refusing defendant's request to charge on good character.
6. "The trial court did not err in instructing the jury on circumstantial evidence. As the State points out, although most of the evidence adduced was in the nature of direct evidence, there was also some circumstantial evidence. Pierce v. State, [ 230 Ga. 766 ( 199 S.E.2d 235)], at 770. Moreover, it is well settled in Georgia law that absent extraordinary circumstances not obtaining in the instant case, it is not harmful error to give a jury instruction on circumstantial evidence even if none is actually present in the case, inasmuch as such an instruction would `"g(i)ve (the defendant) a rule more favorable than he could claim." ' Latimer v. State, 188 Ga. 775, 777 ( 4 S.E.2d 631) (1939), quoting Smith v. State, 140 Ga. 791 ( 79 S.E. 1127) (1913); Nestor v. State, 122 Ga. App. 290, 291 ( 176 S.E.2d 637) (1970). This enumeration, too, is without merit." Barnes v. State, 171 Ga. App. 478, 482 (4) ( 320 S.E.2d 597).
7. The trial court did not err when it instructed the jury concerning the types of aggravated assault even though defendant was only accused of aggravated assault (with intent to rape). Griffin v. State, 168 Ga. App. 696, 698 (3) ( 310 S.E.2d 278). Judgment affirmed. Banke, C. J., and Benham, J., concur.