Dantory Eugene Benning v. State

• Court: Court of Appeals of Georgia
• Decided: January 31, 2018
• Docket: A17A1761
• Status: Published

Opinion

THIRD DIVISION ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

January 31, 2018

In the Court of Appeals of Georgia A17A1761. BENNING v. THE STATE.

RICKMAN, Judge.

Dantory Eugene Benning was charged with eight offenses stemming from an

alleged brutal assault of his live-in girlfriend. He was tried by a jury, convicted, and

sentenced on two counts of aggravated sodomy and one count each of family violence

aggravated assault, family violence battery, terroristic threats, and family violence

simple battery.1 Benning was sentenced to two life sentences plus twenty-seven years

in confinement. On appeal, Benning contends that the trial court erred by admitting

evidence of prior sexual assaults. For reasons that follow, we affirm.

1 Benning was acquitted of one count of aggravated sexual battery and the two counts of family violence aggravated assault were merged for sentencing purposes. On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d

560) (1979). So viewed, the evidence showed that in July 2012, Benning moved in

with his girlfriend (the victim), who lived with her grandmother and her uncle. On

August 23, Benning informed the victim that she could no longer drive her car, he

would take her to work and back, she would not be allowed to go anywhere else, and

if she did not comply, he would hurt one of her family members. As an example, he

threatened to cut her older sister’s face from ear to ear.

The next day, Benning picked the victim up from work and they went to the

store, where she talked to her male cousin. Benning became angry because he had not

given her permission to speak to him. While driving home, Benning slapped her on

the cheek, leaving a welt, and told her that she needed to take him more seriously.

After they returned home, the victim went to bed and fell asleep. She woke up at

approximately 11:00 p.m. when Benning started choking her. He then pulled her by

the neck across the bed and punched her in the back “real hard” about twenty times.

Over the next few hours, Benning beat her with a USB cord on her breast and bottom,

resulting in red marks, bruises, and swelling. He choked her until she passed out and

when she woke up, he was laughing. Benning forced her to have oral sex until she

2 threw up on him; he then put her face in the vomit and made her eat it. Next, Benning

forced her to have anal sex and then alternated between forcing her to have oral sex

and anal sex. The victim testified that Benning also put a broom in her anus three

times. During this lengthy assault, Benning threatened to harm the victim’s family

members in various ways, saying he would put his penis down the throat of her one-

year-old niece, shove peanuts down the throat of her nephew with a peanut allergy,

and “taze” two of her nephews who had seizures. At approximately 4:00 a.m.,

Benning made her take a shower to clean everything off of her. The victim testified

that she did not consent to oral or anal sex with Benning that night and that she was

afraid to scream and have her grandmother or uncle come in the room because she did

not know what Benning would do to her or to them.

The next day at work, the victim called her sister and told her that Benning had

almost killed her and that she needed to find a way to get him away from the house.

The victim also told two of her co-workers what had happened. The victim’s sisters

took her to the Covington Police Department, where she spoke to an officer who

observed that “[s]he was very scared of [Benning]” and recommended that she go to

the hospital. Another officer observed that the victim had red welts on her breast area

and a few welts on her back area. On August 25, the victim went to the Newton

3 Medical Center, complaining that she was sexually assaulted, anally raped, assaulted

with a USB cord, punched, and choked. After waiting over four hours without being

seen by a physician, the victim left. She returned to the hospital the next day and was

examined by a physician who observed bruising on her back and noted that the victim

had tenderness on her spine and over her chest wall in the breast area.

The State presented evidence from two witnesses who testified that they had

previously been sexually assaulted by Benning. In October 2005, at a military base

in Texas, Benning drove a female service member to a party where she became

extremely intoxicated. Benning agreed to take her back to the barracks and helped her

up the stairs and into the bed. She felt nauseous and “started blacking out.” As she

drifted in and out of consciousness, she noticed that Benning was touching her and

taking off her clothes. She asked him what he was doing and told him “[w]e are not

doing that.” Benning then penetrated her and she said, “no.” He did not stop and

when she tried to push him off, he pulled her back and entered her even harder. She

testified that she never indicated to Benning that she wanted to have a sexual

relationship with him. An army investigator assigned to the case interviewed

Benning, who admitted to having sexual intercourse with the female service member,

4 stating that he took advantage of her because she was intoxicated and he was

“thinking with his dick.”

In October 2010, Benning went to visit a former girlfriend. She got upset when

he decided to leave, and in response, Benning punched her in the side of the face and

forced her to have vaginal intercourse, while continuing to beat her in the face, head,

and back. He also forced her to have anal sex and oral sex. When she vomited during

oral sex, he forced her to eat the vomit. Benning alternated between vaginal

penetration and anal penetration, and after he finished, he made her clean herself.

Benning then took her to his mother’s house, where he lived. When they arrived, “it

was sex again,” and she was too scared to resist him. She was again told to clean up

and while doing so, she felt weak and fell. When she could not get up as Benning

instructed, he punched her in the chest. Shortly thereafter, Benning’s mother returned

to the house and ultimately called the former girlfriend’s mother to come and take her

home.

Approximately a year later, the former girlfriend met Benning in a parking lot

to return books that belonged to him. She tried to put the books through the car

window, but Benning reached into the car, opened the door, and pulled her out. She

tried to walk away from him, but he caught her and pulled her back into the car,

5 hitting her head on the door frame. As Benning started to drive, she passed out and

does not recall if she jumped or was pushed from the car. She later woke up in a

house where Benning was staying and he was “having sex” with her. Her next

memory was being in a hospital, where she identified Benning as the person who had

caused her injuries.

Benning testified that he enjoys “hard core” or “kinky” sex. When asked about

the encounter with the female service member, Benning testified that he did not

intentionally have sex without her consent and that he stopped as soon as she asked.

And as to the first incident with his former girlfriend, Benning testified that she got

upset when he told her he had cheated on her, and then he got upset. According to

Benning, they made up and had vaginal, anal, and oral sex before going to his house.

When asked about the second incident involving his former girlfriend, Benning

testified that after he dragged her back into the car, they were arguing while he was

driving, and she jumped out of the car. He then became furious and hit her in the face

twice and kicked her in the leg before driving her to the hospital.

With respect to the charged offenses here, Benning admitted that he got angry

at the victim when she spoke to her cousin in the store without introducing him and

that he slapped her in the car because she kept talking after he told her to be quiet.

6 Benning testified that he got angry again later that night when he discovered that she

had eaten some of his food. Shortly thereafter, he woke her up and initiated vaginal,

oral, and anal sex. They then took the sheet off the bed because she had spit up during

oral sex, and they cleaned up. Benning testified that after the victim had showered,

he began to verbally abuse her and hit her with a USB cord. Benning denied forcing

her to have sex or making her eat her vomit, but admitted he threatened to do so. He

testified that he had put a broom in her anus once before, but did not do so that night.

After he was convicted and sentenced, Benning moved for a new trial,

asserting, inter alia, that the verdict was contrary to the evidence and arguing that the

trial court erred by admitting evidence of prior sexual assaults. After considering

briefs submitted by both parties, the trial court denied the motion for new trial on all

grounds. Benning appeals his convictions.

On appeal, Benning’s sole challenge is to the trial court’s admission of

evidence of the prior sexual assaults. He argues that the evidence was not necessary

to prove an essential element of any charged crime and that the prejudicial effect of

the evidence substantially outweighed any probative value. We will overturn a trial

court’s decision to admit evidence of prior sexual assaults only where there is a clear

7 abuse of discretion. See Steele v. State, 337 Ga. App. 562, 566 (3) (788 SE2d 145)

(2016).

The State sought to admit evidence related to Benning’s prior sexual assaults

under three provisions of Georgia’s new Evidence Code: OCGA §§ 24-4-413, 24-4-

404 (b), and 24-4-403. OCGA § 24-4-413 (a) provides that “[i]n a criminal

proceeding in which the accused is accused of an offense of sexual assault, evidence

of the accused’s commission of another offense of sexual assault shall be admissible

and may be considered for its bearing on any matter to which it is relevant.” The term

“offense of sexual assault” in this Code section includes rape2 and aggravated

sodomy.3 OCGA § 24-4-413 (d) (1).

In sexual assault cases, the provisions of OCGA § 24-4-413 (a) supersede the

provisions of OCGA § 24-4-404 (b).4 See Steele, 337 Ga. App. at 566 (3), n.5.

2 A person commits the offense of rape when he has carnal knowledge (any penetration of the female sex organ by the male sex organ) of a female forcibly and against her will. OCGA § 16-6-1 (a) (1). 3 A person commits the offense of aggravated sodomy when he or she commits sodomy (any sexual act involving the sex organs of one person and the mouth or anus of another) with force and against the will of the other person. OCGA § 16-6-2 (a) (1), (2). 4 OCGA § 24-4-404 (b) provides that “[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action

8 Accordingly, we consider whether the trial court clearly abused its discretion in

admitting evidence of the prior sexual assaults under OCGA § 24-4-413, and we need

not address the admissibility of the evidence under OCGA § 24-4-404 (b). See Latta

v. State, 341 Ga. App. 696, 699 (2) (802 SE2d 264) (2017).

The language of OCGA § 24-4-413 (a) was intended to create a “rule of

inclusion,” with a strong presumption in favor of admissibility as it provides that such

evidence “shall be admissible.” Steele, 337 Ga. App. at 566 (3). Thus, the State can

seek to admit evidence under this provision for any relevant purpose, including

propensity. Dixon v. State, 341 Ga. App. 255, 258 (1) (800 SE2d 11) (2017).

“‘[R]elevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” OCGA § 24-4-401.

Evidence of the prior sexual assaults was relevant to show Benning’s intent,

which was put in issue when Benning entered a plea of not guilty. See Olds v. State,

299 Ga. 65, 72 (2) (786 SE2d 633) (2016). Such a plea requires the State to prove

in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

9 each and every element of the crimes charged, and “[a] culpable state of mind – intent

or criminal negligence – is an essential element of every crime.” Id. Moreover,

evidence that an accused committed an intentional act generally is relevant to show – the evidence, in other words, has some tendency to make more or less probable – that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed close in time and in similar circumstances.

(Emphasis in original.) Id. Evidence of the prior sexual assaults, which required the

same sort of intent as required to prove the sexual assault crimes charged here, was

therefore “relevant” as required by OCGA § 24-4-413 (a). See id.; Kritlow v. State,

339 Ga. App. 353, 355 (2) (793 SE2d 560) (2016) (trial court correctly ruled that

prior sex crimes evidence was relevant to issue of intent). Because “the evidence was

admissible to prove intent, we need not consider whether it was also admissible for

other reasons.” Powell v. State, 332 Ga. App. 437, 440 (2) (773 SE2d 399) (2015).

Relevant evidence introduced under OCGA § 24-4-413 (a) may, however, be

excluded “if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA

§ 24-4-403; see Jackson v. State, 342 Ga. App. 689, 690-91 (805 SE2d 457) (2017)

10 (trial court must consider balancing test of OCGA § 24-4-403 when considering the

admissibility of prior sexual offenses). “This determination lies within the discretion

of the trial court and calls for a common sense assessment of all the circumstances

surrounding the extrinsic offense, including prosecutorial need, overall similarity

between the extrinsic act and the charged offense, as well as temporal remoteness.”

(Punctuation omitted.) Eubanks v. State, 332 Ga. App. 568, 570 (1) (774 SE2d 146)

(2015), citing United States v. Perez, 443 F3d 772, 780 (II) (11th Cir. 2006).

The prior sexual assaults were sufficiently similar to the charged sexual

assaults. Benning took advantage of the female service member by having sexual

intercourse with her when she was so intoxicated that she could not stand up and was

drifting in and out of consciousness. When Benning got upset with his former

girlfriend, he beat her while repeatedly forcing her to have vaginal, anal, and oral sex,

ultimately forcing her to vomit and then making her eat the vomit. A year later,

Benning forced the same woman into a car, and after she jumped from or was pushed

out of the car and was barely conscious, he “ha[d] sex with her.” The charged sexual

assaults began when the victim was asleep and Benning was angry and involved

many of the same non-consensual acts inflicted on Benning’s former girlfriend. Thus,

the manner of abuse was similar and “these similarities make the other offense[s]

11 highly probative with regard to the defendant’s intent in the charged offense[s].”

(Citations and punctuation omitted.) Eubanks, 332 Ga. App. at 570 (1).

As for prosecutorial need, in the face of Benning’s claims that the sexual acts

were consensual, the State was able to use the evidence to bolster the credibility of

the victim by demonstrating that her circumstances were not unique. See Robinson

v. State, 342 Ga. App. 624, 635 (4) (a) (805 SE2d 103) (2017) (evidence of

defendant’s prior offense of sexual assault was relevant to disprove his claim that the

victim’s allegation of a forced sexual encounter was fabricated); Kritlow, 339 Ga.

App. at 356 (2) (evidence that Kritlow had committed similar sexual assaults was

relevant because it “had the tendency to bolster the credibility of the victim by

demonstrating that her circumstances were not unique”) (citations and punctuation

omitted). In addition, the prior sexual assaults were not too remote to be admissible.

See Eubanks, 332 Ga. App. at 570 (1) (evidence of prior act of abuse ending

approximately seventeen years prior to Eubank’s trial was admissible). And any risk

of unfair prejudice was mitigated by the trial court’s limiting instruction, reminding

the jury “to keep in mind the limited use and the prohibitive use of this evidence

about the other acts of the defendant.” See id. Under the circumstances, we discern

no abuse of the trial court’s discretion in admitting evidence of Benning’s prior

12 sexual assaults. See Kritlow, 339 Ga. App. at 356 (2); Eubanks, 332 Ga. App. at 570

(1).

Judgment affirmed. Ellington, P. J., and Andrews, J., concur.