Wiley v. State

386 S.E.2d 523, 192 Ga. App. 808, 1989 Ga. App. LEXIS 1187, 1989 WL 155066

• Court: Court of Appeals of Georgia
• Decided: September 6, 1989
• Docket: A89A1365
• Status: Published

Opinion

Sognier, Judge.

Terry Wiley was indicted on charges of burglary and rape. He was convicted of burglary and attempted rape and appeals.

1. Appellant contends the trial court erred by admitting a tape recorded statement made by appellant to the police without excising those portions of the tape in which appellant discussed getting anc using illegal drugs. “We find no error. ‘It is no valid ground of objecl tion to the admission in evidence of an incriminatory statement oi confession made by the accused in a criminal case that the language indicated that the accused had committed also another and separatj offense.’ [Cit.]” Berryhill v. State, 235 Ga. 549, 551-552 (6) (221 SE2d 185) (1975).

2. Appellant contends the trial court erred by charging the jur| as to attempted rape because the evidence authorized the jury to cor sider only rape or nothing at all. However, the victim testified at tl trial that while appellant’s co-defendant did rape her, appellant faile| to penetrate the victim when he climbed on top of her and wer “through the motions of the” act because the victim was able to g(j appellant off her “to the point that he didn’t [succeed] to what he was doing . . . .” Such evidence is, to say the least, some evidence of attempted rape, and where there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. Cole v. State, 186 Ga. App. 243, 244 (3) (366 SE2d 844) (1988).

Decided September 6, 1989 Rehearing denied September 18, 1989. Dan T. Pressley, Sr., for appellant. Michael G. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.