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Wilson v. State

Court of Appeals of Georgia, First Division

September 9, 2019

WILSON
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          MERCIER, JUDGE.

         A jury found Samuel Wilson guilty of aggravated assault with the intent to rape (as a lesser included offense of the charged crime of rape), aggravated sodomy and false imprisonment. Following his convictions, Wilson filed a motion for new trial, which the trial court denied. Wilson appeals, claiming that the trial court erred by failing to give certain jury charges, that his trial counsel was ineffective for failing to request those jury charges, and that the trial court erred by admitting hearsay and bolstering testimony. Finding no error, we affirm.

         Viewed in the light most favorable to the verdict, the evidence at trial showed the following. See Herrington v. State, 300 Ga. 149 (1) (a) (794 S.E.2d 145) (2016). On October 13, 2014, the victim met Malcom White, whom she was dating, and Wilson, a friend of White's, at the Five Points MARTA station. The three of them went to White's apartment, where they smoked marijuana. After they finished smoking, White and the victim went into White's bedroom and had consensual sexual intercourse. All three spent the night at the apartment. Wilson slept in another bedroom, and the following morning all three smoked marijuana together. Thereafter, White left the apartment, telling the victim that he needed to go to the store. The victim stayed at the apartment and took a nap in White's room. She awoke to find Wilson next to her on the bed, watching a movie. Wilson asked the victim if he could perform an oral sex act on her. The victim said no, rose from the bed, grabbed her purse to make sure Wilson had not stolen anything from her and asked him where White was. Wilson responded that White was "not coming back," then he reached for the victim's neck and pinned her to the bed. Wilson then grabbed her wrists and performed oral sex on her. The victim fought with Wilson and he turned her over so that she was lying on her stomach. Wilson pulled out a condom, which the victim grabbed from him thinking that he would not continue the sexual assault without a condom, but Wilson produced a second condom. The victim testified that Wilson wore the second condom while raping her. The victim continued to fight with Wilson throughout the assault and tried to move off of the bed. Wilson eventually stopped the assault, and the victim ran from the apartment. As she left the apartment, the victim realized that she still had the first condom in her hand, and she threw it over the apartment building stairwell into some nearby bushes.

         The victim called a friend, who drove to pick her up. The victim's friend testified that when she picked the victim up, the victim was crying and seemed scared. The victim's friend called the police and reported what happened.

         Following the phone call, police officers met the victim at White's apartment. The victim then went to Grady Hospital for a sexual assault examination. However, she used the restroom prior to the examination. The physician who conducted the sexual assault exam testified that the victim was "pretty tearful" during the exam and he had to stop a few times. He stated that the exam did not reveal any obvious signs of physical trauma, but the physician noted that such is "quite often" the case in sexual assault exams.

         The detective investigating the case testified that he obtained a search warrant for White's apartment. During the search of the area outside the apartment, a condom was found where the victim had described throwing the first condom, and two condom wrappers, matching the description provided by the victim, were found next to the bed. The victim identified Wilson in a photographic line up and during trial as the individual who assaulted her.

         The State called White to testify. He testified that he dated the victim, but that Wilson was his "best friend" and on the morning of the incident he told Wilson "if he can work his mojo, if he wanted to he could try [the victim] up[.]" He stated that he told Wilson that he could "try" the victim because White "share[s] everything with [Wilson]" and that they had "shared" female partners before. White testified that he then left the apartment and went to work. Later that evening, Wilson contacted White and told him that "he tried [the victim] up and she wasn't going for it, and she had got upset at him . . . . She said that he had raped her[.]" Wilson told White that he did not rape the victim but that he tried to perform oral sex on her, the victim "got mad," they "got into a tussle," and "he didn't let her leave." White testified that he did not want to see his best friend go to jail and that he believed Wilson's account. White stated that he was testifying because he was under subpoena and the State had not promised him any leniency regarding his pending criminal indictments for forgery and theft by receiving stolen property.

         1. Wilson claims that the trial court erred by failing to provide a jury instruction regarding leniency granted to witnesses in exchange for testimony and a jury instruction regarding accomplice testimony. Because Wilson admittedly failed to request these charges or raise these objections at trial,

his claim[s are] reviewed on appeal only for plain error, meaning that we will reverse the trial court only if the instructional error[s were] not affirmatively waived, [were] obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Herrington, supra at 151 (2) (citation and punctuation omitted); see OCGA § 17-8-58 (b) (failure to object to the failure to charge the jury precludes appellate review unless the charge constitutes plain error); Shaw v. State, 292 Ga. 871, 872-873 (2) (742 S.E.2d 707) (2013).

         (a) Wilson complains that the trial court did not instruct the jury regarding leniency that could have been granted to White in exchange for his testimony. Specifically, he claims that the trial court should have given the following charge, sua sponte: "In assessing the credibility of a witness, you may consider any possible motive in testifying, if shown. In that regard you are authorized to consider any possible pending prosecutions, negotiated pleas, grants of immunity or leniency, or similar matters. You alone shall decide the believability of the witnesses." Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2019), § 1.31.80.

         White specifically testified that he was not promised any leniency regarding his two pending criminal indictments. Additionally, the detective testified that White was not promised any leniency in exchange for his testimony at Wilson's trial, and that White's pending criminal prosecution was not discussed at all. As there was no evidence that White testified in exchange for immunity or leniency, the trial court did not err by not giving the charge. See Hunter v. State, 281 Ga. 693, 695-696 (4) (642 S.E.2d 668) (2007).

         (b) Wilson claims that White was an accomplice and as such the trial court erred by not charging the jury on accomplice testimony. Wilson claims that the ...


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