Severance of offenses. DeKalb Superior Court. Before Judge Hunter.
Ashleigh B. Merchant, for appellant.
Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.
Andrews, P. J., and
McFadden, J., concur.
Following a jury trial, Sylvester Ray was convicted on three counts of rape (OCGA § 16-6-1 (a) (1)), three counts of aggravated assault (OCGA § 16-5-21), two counts of kidnapping with bodily injury (OCGA § 16-5-40), and one count of aggravated sodomy (OCGA § 16-6-2). Ray now appeals from his convictions and the denial of his motion for a new trial, contending that the trial court erred in denying his motion to sever the charges for trial. Finding no error, we affirm.
[329 Ga.App. 6] Viewed in the light most favorable to support the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the record shows that this case arose out of three sexual assaults against three different women that occurred in DeKalb County between November 2002 and April 2003. As set forth below, all of the sexual assaults shared certain similarities.
The first sexual assault occurred on November 23, 2002. The 28-year-old victim, L. H., was leaving a bar that night when Ray, whom she did not know, offered to take her home. On the way, Ray told L. H. that he had to stop by his sister's house to check on her. The house was completely dark when Ray turned his vehicle into the driveway and pulled into the garage. After parking the car and turning off the ignition, Ray slapped his arm across L. H.'s neck and told her not to scream or he would kill her. As Ray was taking off L. H.'s clothes, L. H. observed a gun in the console of the car. After raping L. H., Ray got out of the car to use the bathroom, and L. H. fled on foot. As she ran, L. H. heard the sound of a gun shooting. She was able to flag down a passing police car, and the officer took her to the hospital for a sexual assault examination. The swabs taken from the examination revealed the presence of sperm, and a subsequent analysis of the sperm showed that it contained DNA which matched Ray's DNA profile.
The second sexual assault occurred on April 17, 2003. That morning, the 38-year-old victim, C. J., had just gotten out of her vehicle in the parking lot of a strip mall when Ray came up behind her, put a gun in her side, and ordered her to go back to her vehicle. C. J. did not know Ray and had never seen him before. Ray told C. J. to remove her belt, which he then placed around her neck and used to pull her back to her vehicle. Once they were inside the vehicle, Ray directed C. J. to drive to an office park next door, where he raped her. Ray then ordered C. J. to drive to a nearby junkyard, where he robbed her, raped her again, and forced her to perform oral sex on him. When Ray ran away, C. J. got back inside her vehicle and drove home. Later that day, C. J. went to the hospital for a sexual assault examination. The swabs taken from the examination revealed the presence of sperm, and a subsequent analysis of the sperm showed that it contained DNA which matched Ray's DNA profile.
The third sexual assault occurred on April 20, 2003. That night, the 23-year-old victim, M. C., had gotten out of her car in a parking lot and was walking toward a sports bar when Ray called her over to his vehicle. M. C. did not know Ray and had never seen him before. When she leaned down to look into his passenger-side window, Ray pointed a gun at her and ordered her to get in his car. Ray then drove her to a nearby park, where he ordered her out of the vehicle, cut her panties [329 Ga.App. 7] off with a knife, and raped her. After the sexual assault, Ray got back into his vehicle and drove away. After reporting the incident to the police, M. C. was taken to the hospital to undergo a sexual assault examination. The swabs taken from the examination revealed the presence of sperm, and a subsequent analysis of the sperm showed that it contained DNA which matched Ray's DNA profile.
Ray argues that the trial court erred in denying his motion to sever because the
separate offenses were merely similar in character, and that the joint disposition of the unrelated offenses and the confusion of law and evidence regarding the charges created a " smear effect," depriving him of a fair determination of his guilt ...