Rivers v. State

248 S.E.2d 31, 147 Ga. App. 19, 1978 Ga. App. LEXIS 2596

Opinions

Banke, Judge.

The defendant was convicted of rape and on appeal attacks the admission of evidence of a prior rape for which he had been tried and acquitted. Held:

1. Evidence of prior offenses of a similar nature may be- admitted in criminal prosecutions, particularly those involving sexual offenses, for the purpose of identifying the accused by showing a common motive, plan, scheme, bent of mind, or course of conduct. See, e.g., Anderson v. State, 222 Ga. 561 (3) (150 SE2d 638) (1966); Hunt v. State, 233 Ga. 329 (211 SE2d 288) (1974); Thomas v. State, 234 Ga. 635 (1) (217 SE2d 152) (1975); Miller v. State, 130 Ga. App. 275, 276 (3) (202 SE2d 682) (1973).

This is true even though the defendant may have been tried and acquitted of the prior offense. Taylor v. State, 174 Ga. 52 (7), 67-68 (162 SE 504) (1931), overruled on different grounds; Wood v. State, 219 Ga. 509 (134 SE2d 8) (1963); Lee v. State, 8 Ga. App. 413 (5), 418-419 (69 SE 310) (1910); Dandridge v. State, 109 Ga. App. 33 (1) (134 SE2d 814) (1964). As stated in Taylor, supra, at 67: "While . . . the verdict of ript guilty may have indicated that there was not sufficient evidence to convince the jury beyond a reasonable doubt of his guilt, still that acquittal would not necessarily exclude the evidence, because that ' evidence may tend to illustrate the acts of the defendant as shown in the transaction for which he is now on trial,... and may throw a flood of light (on this later evidence, though of itself insufficient to authorize a verdict of guilty.”

To the extent that the holding in Division 3 of Mize v. State, 140 Ga. App. 17 (230 SE2d 81) (1976), may be authority for a contrary rule, it is hereby expressly overruled.

2. Any question as to the prosecutrix’ credibility was for the jury to resolve. See Merritt v. State, 190 Ga. 81 (8 SE2d 386) (1940). The evidence amply supported the verdict.

3. It was not error for the state in closing argument to comment on the appellant’s failure to testify, since defense counsel "opened the door” by asserting in his closing argument that the appellant declined to take the stand because he was nervous. Accord, Frank v. State, 141 Ga. 243 (80 SE 1016) (1914); Harrison v. State, 26 Ga. App. 58 (105 SE 614) (1920).

Argued April 4, 1978 Decided July 14, 1978 Rehearing denied July 31,1978 Falligant, Sims, Hunter & Donaldson, R. B. Donaldson, Jr., for appellant. Andrew J. Ryan, III, District Attorney, Robert M. Hitch, III, Assistant District Attorney, for appellee.

Judgment affirmed.

Bell, C. J., Been, P. J., McMurray, Shulman and Birdsong, JJ., concur. Smith, J., concurs specially. Quillian, J., joins special concurrence. Webb, J., dissents.