Sexual battery, etc. DeKalb Superior Court. Before Judge Scott.
Kevin A. Anderson, for appellant.
Robert D. James, Jr., District Attorney, Gerald Mason, Assistant District Attorney, for appellee.
Barnes, P. J., and
Branch, J., concur.
Michael Rashad Chester was indicted by a DeKalb County grand jury on charges of kidnapping, false imprisonment, attempt to commit a felony, aggravated sodomy, aggravated sexual battery, sexual battery, aggravated assault, false imprisonment, and burglary, committed against four victims. A jury found him guilty on all eighteen counts of the indictment, and he was sentenced to two consecutive life terms plus fifteen years. His amended motion for new trial was denied, and he appeals, asserting seven enumerations of error. For the reasons stated below, we affirm but vacate the judgment of conviction and remand as to counts that should have been merged for sentencing.
1. Chester raises insufficiency of the evidence with respect to his conviction for sexual battery against one of the victims. He contends [328 Ga.App. 889] that the State failed to prove the necessary element of lack of consent, because the victim did not verbally object to his initial advances or physically prevent him from fondling her. The victim admitted that she did not say anything when Chester began touching her, but stated that she did not do so because she was " nervous and scared." At the time he committed the offense in question, Chester had offered the victim a ride to the store but instead had driven her in the wrong direction, to a vacant house. After he touched her, she attempted to get out of the car, and he dragged her back by her hair. He displayed a gun and ordered her to unbutton her pants; she jumped from the moving car and was injured, but escaped.
Lack of consent may be proved by means other than an unambiguous verbal statement to the accused. Here, the State presented evidence of lack of consent, including the victim's nervousness and fear after Chester did not drive her to the promised destination. " [I]t is well settled that lack of resistance, induced by fear, is not legally cognizable consent." (Citation and punctuation omitted.) Littleton v. State, 225 Ga.App. 900, 901 (1) (485 S.E.2d 230) (1997). And whether a victim consented is a matter " solely within the province of the jury." Id.; see also Roberts v. State, 242 Ga.App. 621, 623 (1) (a) (530 S.E.2d 535) (2000). Chester's argument
merely raise[s] issues of fact as to whether the victim can reasonably be deemed to have consented to the act. The defendant is not required to " read the victim's mind" or understand her internal thought processes; he is only required not to impose sex upon her without her free consent. Whether he did so is a question of intent, which the jury determines according to the reasonableness of her testimony as to lack of consent, not the reasonableness of her fear.
(Emphasis in original.) Clark v. State, 197 Ga.App. 318, 321 (3) (398 S.E.2d 377) (1990), aff'd, 261 Ga. 311 (404 S.E.2d 787) (1991). Construed in favor of the jury's verdict, this evidence was sufficient to allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt within the meaning of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Chester contends the trial court erred in denying his motion for mistrial after alleged jury misconduct. After the first day of trial, defense counsel announced that an assistant public defender who was not involved in the case reported that she had overheard several jurors " discussing the case" and that at least one person said " that they thought he, in fact, was guilty." The following morning, Chester moved for a mistrial and ...