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Benning v. State

Court of Appeals of Georgia, Third Division

January 31, 2018



          Rickman, Judge.

         Dantory Eugene Benning was charged with eight offenses stemming from an alleged brutal assault of his live-in girlfriend. He was tried by a jury, convicted, and sentenced on two counts of aggravated sodomy and one count each of family violence aggravated assault, family violence battery, terroristic threats, and family violence simple battery.[1] Benning was sentenced to two life sentences plus twenty-seven years in confinement. On appeal, Benning contends that the trial court erred by admitting evidence of prior sexual assaults. For reasons that follow, we affirm.

         On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). So viewed, the evidence showed that in July 2012, Benning moved in with his girlfriend (the victim), who lived with her grandmother and her uncle. On August 23, Benning informed the victim that she could no longer drive her car, he would take her to work and back, she would not be allowed to go anywhere else, and if she did not comply, he would hurt one of her family members. As an example, he threatened to cut her older sister's face from ear to ear.

         The next day, Benning picked the victim up from work and they went to the store, where she talked to her male cousin. Benning became angry because he had not given her permission to speak to him. While driving home, Benning slapped her on the cheek, leaving a welt, and told her that she needed to take him more seriously. After they returned home, the victim went to bed and fell asleep. She woke up at approximately 11:00 p.m. when Benning started choking her. He then pulled her by the neck across the bed and punched her in the back "real hard" about twenty times. Over the next few hours, Benning beat her with a USB cord on her breast and bottom, resulting in red marks, bruises, and swelling. He choked her until she passed out and when she woke up, he was laughing. Benning forced her to have oral sex until she threw up on him; he then put her face in the vomit and made her eat it. Next, Benning forced her to have anal sex and then alternated between forcing her to have oral sex and anal sex. The victim testified that Benning also put a broom in her anus three times. During this lengthy assault, Benning threatened to harm the victim's family members in various ways, saying he would put his penis down the throat of her one-year-old niece, shove peanuts down the throat of her nephew with a peanut allergy, and "taze" two of her nephews who had seizures. At approximately 4:00 a.m., Benning made her take a shower to clean everything off of her. The victim testified that she did not consent to oral or anal sex with Benning that night and that she was afraid to scream and have her grandmother or uncle come in the room because she did not know what Benning would do to her or to them.

         The next day at work, the victim called her sister and told her that Benning had almost killed her and that she needed to find a way to get him away from the house. The victim also told two of her co-workers what had happened. The victim's sisters took her to the Covington Police Department, where she spoke to an officer who observed that "[s]he was very scared of [Benning]" and recommended that she go to the hospital. Another officer observed that the victim had red welts on her breast area and a few welts on her back area. On August 25, the victim went to the Newton Medical Center, complaining that she was sexually assaulted, anally raped, assaulted with a USB cord, punched, and choked. After waiting over four hours without being seen by a physician, the victim left. She returned to the hospital the next day and was examined by a physician who observed bruising on her back and noted that the victim had tenderness on her spine and over her chest wall in the breast area.

         The State presented evidence from two witnesses who testified that they had previously been sexually assaulted by Benning. In October 2005, at a military base in Texas, Benning drove a female service member to a party where she became extremely intoxicated. Benning agreed to take her back to the barracks and helped her up the stairs and into the bed. She felt nauseous and "started blacking out." As she drifted in and out of consciousness, she noticed that Benning was touching her and taking off her clothes. She asked him what he was doing and told him "[w]e are not doing that." Benning then penetrated her and she said, "no." He did not stop and when she tried to push him off, he pulled her back and entered her even harder. She testified that she never indicated to Benning that she wanted to have a sexual relationship with him. An army investigator assigned to the case interviewed Benning, who admitted to having sexual intercourse with the female service member, stating that he took advantage of her because she was intoxicated and he was "thinking with his dick."

         In October 2010, Benning went to visit a former girlfriend. She got upset when he decided to leave, and in response, Benning punched her in the side of the face and forced her to have vaginal intercourse, while continuing to beat her in the face, head, and back. He also forced her to have anal sex and oral sex. When she vomited during oral sex, he forced her to eat the vomit. Benning alternated between vaginal penetration and anal penetration, and after he finished, he made her clean herself. Benning then took her to his mother's house, where he lived. When they arrived, "it was sex again, " and she was too scared to resist him. She was again told to clean up and while doing so, she felt weak and fell. When she could not get up as Benning instructed, he punched her in the chest. Shortly thereafter, Benning's mother returned to the house and ultimately called the former girlfriend's mother to come and take her home.

         Approximately a year later, the former girlfriend met Benning in a parking lot to return books that belonged to him. She tried to put the books through the car window, but Benning reached into the car, opened the door, and pulled her out. She tried to walk away from him, but he caught her and pulled her back into the car, hitting her head on the door frame. As Benning started to drive, she passed out and does not recall if she jumped or was pushed from the car. She later woke up in a house where Benning was staying and he was "having sex" with her. Her next memory was being in a hospital, where she identified Benning as the person who had caused her injuries.

         Benning testified that he enjoys "hard core" or "kinky" sex. When asked about the encounter with the female service member, Benning testified that he did not intentionally have sex without her consent and that he stopped as soon as she asked. And as to the first incident with his former girlfriend, Benning testified that she got upset when he told her he had cheated on her, and then he got upset. According to Benning, they made up and had vaginal, anal, and oral sex before going to his house. When asked about the second incident involving his former girlfriend, Benning testified that after he dragged her back into the car, they were arguing while he was driving, and she jumped out of the car. He then became furious and hit her in the face twice and kicked her in the leg before driving her to the hospital.

         With respect to the charged offenses here, Benning admitted that he got angry at the victim when she spoke to her cousin in the store without introducing him and that he slapped her in the car because she kept talking after he told her to be quiet. Benning testified that he got angry again later that night when he discovered that she had eaten some of his food. Shortly thereafter, he woke her up and initiated vaginal, oral, and anal sex. They then took the sheet off the bed because she had spit up during oral sex, and they cleaned up. Benning testified that after the victim had showered, he began to verbally abuse her and hit her with a USB cord. Benning denied forcing her to have sex or making her eat her vomit, but admitted he threatened to do so. He testified that he had put a broom in her anus once before, but did not do so that night.

         After he was convicted and sentenced, Benning moved for a new trial, asserting, inter alia, that the verdict was contrary to the evidence and arguing that the trial court erred by admitting evidence of prior sexual assaults. After considering briefs submitted by both parties, the trial court denied the motion for new trial on all grounds. Benning appeals his convictions.

         On appeal, Benning's sole challenge is to the trial court's admission of evidence of the prior sexual assaults. He argues that the evidence was not necessary to prove an essential element of any charged crime and that the prejudicial effect of the evidence substantially outweighed any probative value. We will overturn a trial court's decision to admit evidence of prior sexual assaults only where there is a clear abuse of discretion. See Steele v. State, 337 Ga.App. 562, 566 (3) (788 S.E.2d 145) (2016).

         The State sought to admit evidence related to Benning's prior sexual assaults under three provisions of Georgia's new Evidence Code: OCGA §§ 24-4-413, 24-4-404 (b), and 24-4-403. OCGA § 24-4-413 (a) provides that "[i]n a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant." The term ...

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