Sodomy, etc. Hart Superior Court. Before Judge Malcom.
Amanda S. Morris, for appellant.
D. Parks White, District Attorney, Jean G. Mangan, Geoffrey L. Fogus, Assistant District Attorneys, for appellee.
BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.
Following his convictions for aggravated assault and sodomy and the denial of his motion for new trial, James William Jordan appeals and contends the trial court erred instructing the jury on the law of sodomy and by allowing evidence of a similar transaction. We agree that the trial court erred when it failed to respond to a question from the jury by informing the jury of the category of sexual acts decriminalized by our Supreme Court's decision in Powell v. State, 270 Ga. 327 (510 S.E.2d 18) (1998), which amounted to Jordan's sole defense to the sodomy charge. We therefore reverse Jordan's conviction of sodomy and remand for a new trial on that charge.
Construed in favor of the verdict, see Jackson v. Virginia, 443 U.S. 307 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence shows that the victim and Jordan ended their romantic relationship in mid-February 2009 but that the victim admitted having sex with Jordan twice in the 24 hours leading up to the incident at issue. On the evening of February 27, 2009, the victim, Jordan, and Liane Miller returned to Miller's house following an evening at a local establishment. Miller asked Jordan to leave after he discharged a firearm in her house, and the victim left with him. The victim then walked a short distance to the place where she was staying, arguing with Jordan along the way. When the two reached the driveway, Jordan grabbed her hair and shirt, and when the victim resisted, her shirt came off. Jordan told the victim that he had a pistol in his pocket, and he ordered her to go with him to his camper located a short distance away and held her arm as they walked. In the camper,
Jordan told the victim to undress, called her a whore, and ordered her to perform oral sex on him. When she refused, he forced her by putting a knife to her throat, and forced her movements during oral sex such that she sustained injuries and threw up. While still holding the victim at knifepoint, Jordan then attempted to have forcible anal sex with her. When that attempt was unsuccessful, Jordan held the victim against a wall by the neck with her feet off the ground and told her he was going to kill her if she left him. To escape, the victim told Jordan that she would call another woman so the three of them could have sex, and she called Miller to ask to borrow her car. When the couple returned to Miller's house, Jordan asked Miller if he could use the car, but the victim signaled to Miller by putting her hands to her throat and shaking her head " no," and Miller refused Jordan's request. Jordan became angry, and the victim ran to the bathroom, [328 Ga.App. 463] locked herself in, and called the police. Jordan threatened to kick the door down, but the victim stayed in the bathroom until the police arrived and arrested Jordan.
The State also introduced evidence showing that Jordan's uncle suggested to the victim that she testify that she could not recall the events, as well as evidence that Jordan asked the victim to tell the jury that she had lied to the police and that " it was all willing[ ] and rough sex." In addition, the State introduced a letter from Jordan to the victim in which he professed love to her and stated:
If I get convicted, do not blame yourself for it, but with you on my side, the odds are for me. He does not have a case on me without you ... but he don't know that you are going to come to court for me and he don't know that you are going to be Ms. Jordan when I get out.
The sexual assault nurse who saw the victim within six hours of the incident testified that the victim's injuries were " the most severe injury to an oral cavity that I've seen [since 1996]." The nurse also testified that markings on the victim's neck were consistent with having a knife held against her neck, that bruises on her neck were consistent with having been choked, and that the victim had injuries in the anal area.
1. The evidence was sufficient to support the convictions of aggravated assault, for threatening to injure the victim with the knife, and nonconsensual sodomy, for forcing the victim to engage in oral sex. See OCGA § ...