rejecting defendant's argument that the trial court failed to fairly explain the requirement of corroboration because there is no requirement of corroboration of victim's testimony in a rape case, and trial court properly instructed jury on that issueSummary of this case from Gaxiola v. State
SUBMITTED MARCH 8, 1979.
DECIDED JUNE 26, 1979. REHEARING DENIED JULY 16, 1979.
Burglary, etc. Dougherty Superior Court. Before Judge Kelley.
Mary M. Young, for appellant.
William S. Lee, District Attorney, Loring A. Gray, Jr., Assistant District Attorney, for appellee.
Appellant was convicted of burglary and rape. On appeal, we affirm.
1. Appellant contends on general grounds that the evidence adduced at trial was legally insufficient to support the jury's verdict, which verdict, he complains, was contrary to the weight of the evidence.
"On appeals from findings of guilt, the presumption of innocence no longer prevails, the fact finders have determined the credibility of witnesses, the fact finders have been convinced beyond a reasonable doubt, and the appellate courts review the evidence only to determine if there is any evidence sufficient to authorize the fact finder to return the verdict of guilty." Ridley v. State, 236 Ga. 147, 149 ( 223 S.E.2d 131); Dillard v. State, 147 Ga. App. 587 (1) ( 249 S.E.2d 640).
"Since the defendant admitted... the [act] complained of, but contended the prosecutrix voluntarily submitted or suggested [it], this only created an issue of fact which was resolved by the jury. The jury resolved this conflict in favor of the state, and this court will not substitute its judgment for that of the jury." Lahr v. State, 239 Ga. 813 (1) ( 238 S.E.2d 878); Glover v. State, 237 Ga. 859 (1) ( 230 S.E.2d 293).
2. Appellant claims the court erred in not fully explaining to the jury the requirement of corroboration in a rape case. We must take issue with appellant's position.
Notwithstanding appellant's contentions to the contrary, the court fairly and adequately charged the jury on the necessity of corroboration of the victim's testimony. See Porter v. State, 200 Ga. 246 (1) ( 36 S.E.2d 794); Marks v. State, 237 Ga. 277 (3) ( 227 S.E.2d 334). See generally Code Ann. § 26-2001, as amended by Ga. L. 1978, p. 3, Sec. 1, which eliminated the requirement of corroboration of the victim's testimony in a rape case.
3. Appellant's contention that the court committed error in failing to instruct the jury on their roles as individual jurors is similarly without merit. "Only in `Allen' type `dynamite' charges are instructions on the individual duty of each juror ... recommended." Porter v. State, 141 Ga. App. 602 (4) ( 234 S.E.2d 100). As there was no evidence of a jury deadlock, it was within the discretion of the trial judge to instruct the jury on their right not to surrender their honest convictions in reaching a verdict.
Contrary to appellant's assertion, the court instructed the jury to reach a unanimous verdict pursuant to appellant's written request for such a charge.
4. Appellant submits that the sentence of the trial court penalized him for exercising his right to appeal. This is not well taken.
On the date set for sentencing, July 21, 1978, appellant was ordered by the court to be confined while the court considered the question of probation. On July 24, 1978, the court entered judgment upon the jury verdicts.
The actions of the court in ordering the confinement of the defendant during the period between conviction and final sentencing were authorized under Code Ann. § 27-2709. Moreover, defendant's claim that he received a harsher sentence in response to his filing a motion for new trial is not supported by the record, for he had not been previously sentenced by the court. Compare Chaffin v. Stynchcombe, 412 U.S. 17 ( 93 SC 1977, 36 L.Ed.2d 714).
As the foregoing enumerations of error are without merit, the judgment of the trial court is affirmed.
Judgment affirmed. Deen, C. J., and McMurray, P. J., concur.