Reconsideration denied July 31, 2014 -- Cert. applied for.
Rape. Chatham Superior Court. Before Judge Tise, Senior Judge.
Steven L. Sparger, for appellant.
Meg E. Heap, District Attorney, Jennifer P. Guyer, Assistant District Attorney, for appellee.
Doyle, Presiding Judge. Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Miller, Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur.
Doyle, Presiding Judge.
Steven Mark Johnson was indicted for rape and aggravated assault. A Chatham County jury found him guilty of rape, but not guilty of aggravated assault. Johnson appeals the subsequent denial of his motion for new trial, arguing that the trial court erred by (1) denying his motion for a mistrial based on the admission of evidence that was not timely disclosed by the State; (2) admitting hearsay testimony; (3) admitting two prior convictions for impeachment purposes; and (4) sustaining the State's objection to his closing argument. Johnson also argues that he received ineffective assistance of counsel. We affirm, for the reasons that follow.
On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence
is sufficient under the standard of Jackson v. Virginia.[] This same standard applies to our review of the trial court's denial of [the defendant's] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
So viewed, the evidence shows that on March 23, 2009, Johnson was living in the home of R. L., his ex-girlfriend and mother of his son; [328 Ga.App. 703] R. L.'s adult daughter, L. L., also lived in the home. At approximately 1:00 a.m., L. L. was at home alone with Johnson when he came out of the bedroom and directed her to rise from the couch. When L. L. asked him why, Johnson grabbed her by her neck and then tightened his hand until she " [saw] white lights," telling her, " Get up before I kill you." He then forced L. L. to go into her mother's bedroom and lie face-down on the bed, pulled down her pants, and penetrated her vagina with his penis. Afterward, Johnson instructed L. L. to clean herself. L. L. went into the bathroom for a short period and then ran to a nearby friend's home.
L. L. called her mother, screaming, and told her that Johnson had raped her. R. L. called 911, and state patrol officers responded to R. L.'s home and made contact with Johnson. Johnson seemed " very uneasy" and nervous, and while the officers were present, he spoke to R. L. on the telephone, telling her that " he was sorry." The officers left Johnson at the house and then responded to the home to which L. L. had fled following the incident.
When they arrived, L. L. was " curled up on the floor, crying" and was initially " too hysterical" to respond to questioning. L. L. was transported to the hospital, where she told the treating physician that she had neck pain and " had been choked and sexually assaulted." The doctor observed " four[,] small[,] superficial scratches" on L. L.'s neck, and medical personnel performed a sexual assault examination. Sperm DNA collected from cervical swabs of L. L. matched that of Johnson.
L. L. told police that Johnson choked her, threatened to kill her, and raped her. The police then returned to R. L.'s house, arrested Johnson, and took him to police headquarters for questioning. Johnson was cooperative, repeatedly asked if L. L. was okay, asked " I [did not] hurt her, did I?," and stated that he had blacked out and did not know what happened. Johnson also told police, " I feel bad about this s--t here. How did I get myself into this s--t here?"
During the 2012 trial, the State introduced a 2009 letter from Johnson to R. L. in which Johnson apologized, explaining that he had " blacked out" after consuming drugs and alcohol. Johnson also wrote that because he had erectile dysfunction, there was " no way [he] could have penetrated [L. L.'s] vagina," and " therefore, there's no '[r]ape.' " At trial, Johnson admitted that he had sexual intercourse with L. L. on the night in question, but he stated that it was consensual, and he denied hitting or choking her. According to Johnson, L. L. came into his room, woke him, and removed her clothes. Johnson testified that L. L. did not seem upset afterward; he gave her money, but he " guess[ed] it [was not] the right amount or something."
[328 Ga.App. 704] At the conclusion of the evidence, the jury found Johnson not guilty of aggravated assault and guilty of rape. Johnson was sentenced as a recidivist to life without parole. The trial court denied his subsequent motion for new trial, and this appeal followed.
Johnson argues that the trial court erred by denying his motion for mistrial based on the admission of his 2009 letter to R. L. This argument presents no basis for reversal.
At trial, after the victim testified, the State advised the trial court that R. L. had just produced a letter that Johnson had written her. Defense counsel objected to the introduction
of the letter based on the State's failure to notify Johnson about it ten days prior to trial as required by OCGA § 17-16-4 (a) (1). While this Code section requires the State to produce no later than ten days prior to trial any relevant written or recorded statements made by the defendant " within the possession, custody, or control of the state or prosecution... ,"  OCGA § 17-16-4 (c) contemplates the discovery of additional ...