2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 6 - Sexual Offenses
§ 16-6-1. Rape

1. A person commits the offense of rape when he has carnal knowledge of:
   1. A female forcibly and against her will; or
   2. A female who is less than ten years of age.

      Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

2. A person convicted of the offense of rape shall be punished by death, by imprisonment for life without parole, by imprisonment for life, or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment, followed by probation for life. Any person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.
3. When evidence relating to an allegation of rape is collected in the course of a medical examination of the person who is the victim of the alleged crime, the Georgia Crime Victims Emergency Fund, as provided for in Chapter 15 of Title 17, shall be responsible for the cost of the medical examination to the extent that expense is incurred for the limited purpose of collecting evidence.

(Laws 1833, Cobb's 1851 Digest, p. 787; Code 1863, §§ 4248, 4249; Ga. L. 1866, p. 151, § 1; Code 1868, §§ 4283, 4284; Code 1873, §§ 4349, 4350; Code 1882, §§ 4349, 4350; Penal Code 1895, §§ 93, 94; Penal Code 1910, §§ 93, 94; Code 1933, §§ 26-1301, 26-1302; Ga. L. 1960, p. 266, § 1; Code 1933, § 26-2001, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1978, p. 3, § 1; Ga. L. 1994, p. 1959, § 5; Ga. L. 1996, p. 1115, § 1; Ga. L. 1997, p. 6, § 2; Ga. L. 1999, p. 666, § 1; Ga. L. 2006, p. 379, § 8/HB 1059; Ga. L. 2011, p. 214, § 1/HB 503.)

- Actions for childhood sexual abuse, § 9-3-33.1.

Jurisdiction of the Court of Appeals over certain crimes, § 15-3-3.

Time limitation on prosecutions for crimes punishable by death or life imprisonment, § 17-3-1.

Televising testimony of child who is victim of offense under this Code section, § 17-8-55.

Development of rape prevention and personal safety education program, § 20-2-314.

Admissibility of evidence relating to the past sexual behavior of the complaining witness in a prosecution for rape, § 24-4-412.

Visitation with minors by convicted sexual offenders while imprisoned, § 42-5-56.

Damages may be recovered, § 51-1-14.

- Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), held that imposition of the death penalty for rape where the victim is not killed is in violation of the Eighth Amendment. Eberheart v. Georgia, 433 U.S. 917, 97 S. Ct. 2994, 53 L. Ed. 2d 1104 (1977), citing Coker, held the death penalty for kidnapping where the victim is not killed to be in violation of the Eighth Amendment. The Supreme Court of Georgia, in Collins v. State, 239 Ga. 400, 236 S.E.2d 759 (1977) held that the rationale of Coker must be applied also to kidnapping.

Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994'."

Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:

"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and

"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."

Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act."

Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides for severability.

Ga. L. 1994, p. 1959, § 18, not codified by the General Assembly, provides: "This Act shall become effective on January 1, 1995, upon ratification by the voters of this state at the 1994 November general election of that proposed amendment to Article IV, Section II, Paragraph II of the Constitution authorizing the General Assembly to provide for mandatory minimum sentences and sentences of life without possibility of parole in certain cases and providing restrictions on the authority of the State Board of Pardons and Paroles to grant paroles.... " That amendment was ratified by the voters on November 8, 1994, so the amendment to this Code section by this Act became effective on January 1, 1995.

Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond , 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond , it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

- For article, "The Demise of the Corroboration Requirement - Its History in Georgia Rape Law," see 26 Emory L.J. 805 (1977). For article, "The Georgia Roundtable Discussion Model: Another Way to Approach Reforming Rape Laws," see 20 Ga. St. U. L. Rev. 565 (2004). For article on the 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For article, "Rape On and Off Campus," see 65 Emory L. J. 1 (2015). For article, "The Costs of Changing Our Minds," see 69 Emory L.J. 75 (2019). For note proposing Blood Grouping Test Act to expand admissible guidance in paternity proceedings, see 1 Mercer L. Rev. 266 (1950). For note on the 1999 amendment to this Code section, see 16 Ga. St. U. L. Rev. 99 (1999). For comment on Lynn v. State, 231 Ga. 559, 203 S.E.2d 221 (1974), appearing below, see 8 Ga. L. Rev. 973 (1974).

ANALYSIS

• General Consideration
• Merger and Other Offenses
• Jury Instructions
• Sufficiency of Evidence
• Sentence
• Death Penalty

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions that were decided prior to the amendments to the length of sentence specified in subsection (b) are included in the annotations for this Code section.

- See Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975), sentenced vacated, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

Statutory scheme governing punishment for a first-time rape conviction, O.C.G.A. §§ 16-6-1(b) and17-10-6.1, gave the defendant fair notice that the defendant could be sentenced either to life imprisonment, eligible for parole after 30 years, or a minimum of 25 years without parole, with any additional years likewise not subject to any possibility of parole. Therefore, the statutes were not unconstitutionally vague. Merritt v. State, 286 Ga. 650, 690 S.E.2d 835 (2010).

Former Code 1933, § 26-2001 was not violative of the equal protection clause of U.S. Const., amend. 14. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

Distinction made between male and female in former Code 1933, § 26-2001 was reasonable. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

Difference between male and female recognized by former Code 1933, § 26-2001 was a physiological reality, and the objective serves a public purpose in preventing sexual attacks upon women, with the resulting physical injury, psychological trauma, and possible pregnancy. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

Intent was not an element of the crime of rape in Georgia. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297 (1984).

Force and penetration are essential elements of rape. Henning v. State, 153 Ga. App. 465, 265 S.E.2d 372 (1980).

If the state desires to convict a defendant of forcible rape, even though the victim is under 14 years of age, it must prove the element of force by acts of force. Henning v. State, 153 Ga. App. 465, 265 S.E.2d 372 (1980).

- Lack of resistance, induced by fear, is not legally cognizable consent, but constitutes force. Walker v. State, 157 Ga. App. 728, 278 S.E.2d 487 (1981).

Amount of evidence to prove force against a child is minimal, since physical force is not required, and intimidation may substitute for force. House v. State, 236 Ga. App. 405, 512 S.E.2d 287 (1999).

When the victim of numerous episodes of severe sexual abuse was a seven-year-old girl, whose prolonged exposure to sexual abuse resulted in observable physical injuries, whose outcries to her mother were ignored and who was warned not to tell anyone about her father's abuse, the jury was authorized to determine that, from the victim's perspective, further resistance was futile and that the defendant possessed the element of force beyond a reasonable doubt. House v. State, 236 Ga. App. 405, 512 S.E.2d 287 (1999).

State must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim's age, but the quantum of evidence to prove force against a child is minimal, since physical force is not required and intimidation may substitute for force. Furthermore, force for purposes of forcible rape may be proved by direct or circumstantial evidence. Pollard v. State, 260 Ga. App. 540, 580 S.E.2d 337 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

"Forcibly" and "against her will" are not synonymous. Hill v. State, 246 Ga. 402, 271 S.E.2d 802 (1980), cert. denied, 451 U.S. 923, 101 S. Ct. 2001, 68 L. Ed. 2d 313 (1981).

Fact that a victim is under the age of consent may supply the "against her will" element in a forcible rape prosecution under O.C.G.A. § 16-6-1, but the same fact cannot supply the element of force as a matter of law. State v. Collins, 270 Ga. 42, 508 S.E.2d 390 (1998) superseded by statute as stated in, State v. Lyons, 256 Ga. App. 377, 568 S.E.2d 533 (2002).

Terms "forcibly" and "against her will" are two separate elements of proving rape. House v. State, 236 Ga. App. 405, 512 S.E.2d 287 (1999).

Terms "forcibly" and "against her will," as used in O.C.G.A. § 16-6-1(a), are two separate elements of proving rape; the term "against her will" means without consent while the term "forcibly" means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Pollard v. State, 260 Ga. App. 540, 580 S.E.2d 337 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

"Against her will" is synonymous with "without her consent." Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981).

- Evidence sufficiently supported the defendant's rape conviction because it showed that the defendant penetrated the defendant's former girlfriend's sex organ with the defendant's male sex organ despite the fact that the victim told the defendant not to do so; that is, the defendant had "carnal knowledge" of the defendant's former girlfriend forcibly and against the victim's will, which was sufficient to sustain the defendant's rape conviction. Walker v. State, 270 Ga. App. 733, 607 S.E.2d 912 (2004).

- Language of statute that "any penetration of the female sex organ by the male sex organ" constitutes carnal knowledge is a sufficient and proper standard for submission to jury, because "any penetration" is a phrase in common usage and therefore required no further definition. Jackson v. State, 157 Ga. App. 604, 278 S.E.2d 5 (1981).

- Trial court did not err in denying the defendant's motion for new trial after the defendant was convicted of rape because venue was sufficiently established by a detective's testimony that the apartment complex where the crimes occurred was in DeKalb County, and even accepting the defendant's argument that the evidence only supported the conclusion that the victim could have been driven into another county before the rape occurred, that would not preclude a jury's conclusion that venue could be proper in DeKalb County; because the most definite testimony regarding the location of the crimes related to DeKalb County, the jury was authorized to find beyond a reasonable doubt that the rape could have occurred there. Bizimana v. State, 311 Ga. App. 447, 715 S.E.2d 754 (2011).

- Consent to sexual intercourse obtained through a present and immediate fear of bodily injury to the female involved is the equivalent of no consent at all, and an act of intercourse consummated under such circumstances cannot be said to have been committed with the consent of the female. Jackson v. State, 225 Ga. 553, 170 S.E.2d 281 (1969); Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

Force is an element of the crime of rape, but it may be exerted not only by physical violence but also by threats of serious bodily harm which overpower the female and cause her to yield against her will. McNeal v. State, 228 Ga. 633, 187 S.E.2d 271 (1972).

Consent induced by force or fear and intimidation does not amount to consent in law and does not prevent intercourse from constituting rape. Thomas v. State, 159 Ga. App. 249, 283 S.E.2d 37 (1981).

- 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. Clark v. State, 197 Ga. App. 318, 398 S.E.2d 377 (1990), aff'd, 261 Ga. 311, 404 S.E.2d 787 (1991).

Lack of consent negates any "consent" and renders the act rape. To suggest the state must prove the victim's fear was "reasonable" amounts to no more than saying a person must, and is deemed to, consent to any sex act so long as she "reasonably" ought not to be afraid. Clark v. State, 197 Ga. App. 318, 398 S.E.2d 377 (1990), aff'd, 261 Ga. 311, 404 S.E.2d 787 (1991).

- Penetration of the female sexual organ by the sexual organ of the male which is necessary to constitute rape need be only slight. It is not necessary that the vagina shall be entered or the hymen ruptured; the entering of the anterior of the organ, known as the vulva or labia, is sufficient. Hall v. State, 29 Ga. App. 383, 115 S.E. 278 (1923); Lee v. State, 197 Ga. 123, 28 S.E.2d 465 (1943); Addison v. State, 198 Ga. 249, 31 S.E.2d 393 (1944); Long v. State, 84 Ga. App. 638, 66 S.E.2d 837 (1951); Payne v. State, 231 Ga. 755, 204 S.E.2d 128 (1974); Jackson v. State, 157 Ga. App. 604, 278 S.E.2d 5 (1981).

Vaginal trauma and physical injury are not necessarily constituent elements of criminal offense of rape. Searcy v. State, 158 Ga. App. 328, 280 S.E.2d 161 (1981).

Penetration may be proved by indirect or circumstantial evidence. Payne v. State, 231 Ga. 755, 204 S.E.2d 128 (1974).

Lack of consent is a necessary element of the offense of rape. Evans v. State, 191 Ga. App. 364, 381 S.E.2d 760 (1989).

- Crime of rape is not proved if the evidence shows that the female at any time consented to the act of sexual intercourse. Jackson v. State, 225 Ga. 553, 170 S.E.2d 281 (1969).

- After defendant kidnapped his wife, drove her to an isolated area, and with a gun close at hand, he, in his words, "made love" to her, the jury was authorized to conclude that she did not "consent" to this act of sexual intercourse. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

Jury could conclude that a victim was unable to give consent to defendant to sexual intercourse because the 31-year-old victim was mentally retarded and deaf, could not communicate other than with about five signs, functioned like a two-year-old or less, and was non-responsive when called to the witness stand. Page v. State, 271 Ga. App. 541, 610 S.E.2d 171 (2005).

- Rule is well settled that, in a prosecution for rape, the fact of the woman's having made a complaint soon after the assault took place is admissible in evidence for the purpose of rebutting the idea that the female consented to the criminal act. Watson v. State, 235 Ga. 461, 219 S.E.2d 763 (1975).

- Victim's age, 12 years old, indicated that, as a matter of law, the intercourse was nonconsensual and "against her will." Hill v. State, 246 Ga. 402, 271 S.E.2d 802 (1980), cert. denied, 451 U.S. 923, 101 S. Ct. 2001, 68 L. Ed. 2d 313 (1981) (now age 10).

- Considerations of "consent" and "force" and "against her will" are irrelevant in a statutory rape case, and the age of the victim is irrelevant in a forcible rape case except insofar as it may show her incapable of giving consent and thereby supply the "against her will" element. Hill v. State, 246 Ga. 402, 271 S.E.2d 802 (1980), cert. denied, 451 U.S. 923, 101 S. Ct. 2001, 68 L. Ed. 2d 313 (1981).

Intimidation may substitute for physical force to satisfy the "force" element in a forcible rape case in which the victim is under the age of consent. State v. Collins, 270 Ga. 42, 508 S.E.2d 390 (1998) superseded by statute as stated in, State v. Lyons, 256 Ga. App. 377, 568 S.E.2d 533 (2002).

Element of force is shown in a case involving a victim under the age of consent if the defendant's words or acts were sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself or others. State v. Collins, 270 Ga. 42, 508 S.E.2d 390 (1998) superseded by statute as stated in, State v. Lyons, 256 Ga. App. 377, 568 S.E.2d 533 (2002).

General demurrer properly sustained when state alleged carnal knowledge with a female whose "overall cognitive age equivalence" was less than ten years of age. O.C.G.A. § 16-6-1(a)(2)'s reference to "ten years of age" is determined based on date of birth to date of crime. State v. Lyons, 256 Ga. App. 377, 568 S.E.2d 533 (2002).

- Sexual intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from use of drugs or other cause, or sleep, is rape. Paul v. State, 144 Ga. App. 106, 240 S.E.2d 600 (1977); Johnson v. State, 186 Ga. App. 891, 369 S.E.2d 48, cert. denied, 186 Ga. App. 918, 369 S.E.2d 48 (1988).

- When the defendant had sexual relations with the victim as she lay comatose in her hospital bed, his actions constituted rape even though the defendant and the victim had enjoyed a sexual relationship prior to her injury, and it is reasonable to assume she would have consented had she been capable of doing so. Brown v. State, 174 Ga. App. 913, 331 S.E.2d 891 (1985).

- For a defendant to be guilty of rape, the victim must have been a person, a living human being; if dead before the act, the act is not rape. Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977), vacated on other grounds, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79 (1979).

- When the defendant has used an offensive weapon first to kill his victim and then to rape her, so that the victim is dead when the rape actually is consummated, the rape occurred nonetheless forcibly and against her will. Lipham v. State, 257 Ga. 808, 364 S.E.2d 840, cert. denied, 488 U.S. 873, 109 S. Ct. 191, 102 L. Ed. 2d 160 (1988), but see Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977), vacated on other grounds, 578 F.2d 1045 (5th Cir. 1978), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79 (1979).

- During a defendant's trial for being a party to rape and other offenses arising out of the repeated rapes of the defendant's 11-year-old child, the defendant's motion for a new trial on the ground that the defendant received ineffective assistance of counsel was properly denied because the defendant did not show that but for the failure of trial counsel to present a battered person defense, the outcome of the trial might have been different; the defendant failed to provide trial counsel with information indicating a possibility that the defendant suffered from that syndrome, and even if such information had been provided, the trial court might not have allowed the defense because it was a defense of justification and the defendant denied knowing about the rapes. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).

No implicit marital exclusion exists within O.C.G.A. § 16-6-1 that makes it legally impossible for a husband to be guilty of raping his wife. Warren v. State, 255 Ga. 151, 336 S.E.2d 221 (1985) (decided prior to 1996 amendment).

Proof of emission is not an essential element of the crime of rape. Spraggins v. State, 255 Ga. 195, 336 S.E.2d 227 (1985), cert. denied, 476 U.S. 1120, 106 S. Ct. 1982, 90 L. Ed. 2d 664 (1986).

Crime of rape is completed when, forcibly and against the will of the victim, the defendant penetrates the female sex organ with his male sex organ. Ejaculation is not an element of rape, and it is not necessary that the examining physician find semen in the victim's body. Skipper v. State, 257 Ga. 802, 364 S.E.2d 835 (1988).

It is not necessary that examining physician find semen in victim's body. Perry v. State, 154 Ga. App. 385, 268 S.E.2d 747 (1980).

General Assembly has removed corroboration requirement which was specifically a part of the previous rape statute. Baker v. State, 245 Ga. 657, 266 S.E.2d 477 (1980).

- Former Code 1933, § 26-2001 as amended by Ga. L. 1978, p. 3, § 1 eliminated the requirement of corroboration of the victim's testimony in a rape case. Stallworth v. State, 150 Ga. App. 766, 258 S.E.2d 611 (1979).

Former Code 1933, § 26-2001 did not require "emission" of sperm as a constituent element of rape; nor is it the law that the victim's testimony must be corroborated or supported by additional evidence to support a finding of rape. Neal v. State, 152 Ga. App. 395, 263 S.E.2d 185 (1979).

There is no longer any requirement of corroboration of the victim's testimony in a rape case. Hanvey v. State, 186 Ga. App. 690, 368 S.E.2d 357, cert. denied, 186 Ga. App. 918, 369 S.E.2d 48 (1988).

Testimony of the victim alone is sufficient to affirm the conviction of rape. Greulich v. State, 263 Ga. App. 552, 588 S.E.2d 450 (2003).

Defendant's conviction for rape did not have to be reversed because the state did not introduce scientific evidence to corroborate the victim's testimony that defendant raped the victim. Warren v. State, 265 Ga. App. 109, 592 S.E.2d 879 (2004).

Term "rape" does not also include the offense of statutory rape. Grayer v. State, 176 Ga. App. 248, 335 S.E.2d 483 (1985).

- Even though an indictment listed only the statute for forcible rape, because it alleged facts relevant to statutory rape, defendant was put on notice that he was being charged with the latter offense and was not prejudiced. Brown v. State, 228 Ga. App. 748, 492 S.E.2d 555 (1997).

- With regard to a defendant's conviction for forcible rape of the defendant's child during the time the child was 13 through 15 years of age, the trial court correctly concluded that the state had 15 years from the victim's 16th birthday on January 12, 1995, or until January 12, 2010, to prosecute the case; therefore, no ex post facto violation occurred since the indictment was filed on January 8, 2008. Duke v. State, 298 Ga. App. 719, 681 S.E.2d 174 (2009), cert. denied, No. S09C1866, 2010 Ga. LEXIS 31 (Ga. 2010).

With regard to a defendant's conviction for rape of a minor relative, the trial court did not err by denying the defendant's motion for a new trial on the ground that the applicable statute of limitations ran on the rape offenses before the defendant was charged because in applying the 1996 amendment to O.C.G.A. § 17-3-1 and the tolling provisions of O.C.G.A. § 17-3-2.1, the limitation period for the defendant's crime ran 15 years from December 13, 1995, when the crimes were first reported to authorities. Thus, because the state had until December 13, 2010 to indict the defendant, the January 7, 2008, indictment was timely and no ex post facto violation arose because the original seven-year limitation period had not expired at the time. Flournoy v. State, 299 Ga. App. 377, 682 S.E.2d 632 (2009).

- With regard to a defendant's conviction for rape of a minor relative, the trial court did not err by denying the defendant's motion for a new trial on the ground that the indictments were fatally flawed because the indictments did not specifically allege the required element of force in charging rape because by alleging "unlawful" carnal knowledge during 1992 to 1995, the indictment asserted a charge of forcible rape under the law in effect prior to the 1996 amendment, therefore, the indictment did establish cognizable charges. Additionally, the defendant filed no special demurrers as to the form of the indictment and, thus, waived any argument in that regard. Flournoy v. State, 299 Ga. App. 377, 682 S.E.2d 632 (2009).

- Defendant's convictions for anal and oral sodomy were not merged into his rape conviction, since each of the three offenses contains at least one element not contained in the others. Even though it was anatomically impossible for the three offenses to merge as a matter of fact, the matter was properly submitted for resolution to the jury, which resolved the matter against the defendant. Johnson v. State, 195 Ga. App. 723, 394 S.E.2d 586 (1990).

- Defendants nonviolent sexual encounter with a minor is not similar to an alleged rape of an adult and admission of the evidence was reversible error. Perry v. State, 263 Ga. App. 670, 588 S.E.2d 838 (2003).

Trial court properly allowed the admission of similar transaction evidence from another rape victim who identified the defendant as the man who raped her under similar circumstances four years earlier since the prior victim's testimony was reliable under the totality of the circumstances. Jennings v. State, 277 Ga. App. 159, 626 S.E.2d 155 (2006).

Similar transaction evidence was properly admitted against defendant charged with rape and false imprisonment as the state showed sufficient evidence of a proper purpose for the admission, specifically, that both sex offenses involved attacks by force against other persons for the purpose of forcing sexual intercourse upon them, and that both incidents occurred behind a shopping center where defendant drove after promising to take the victims home. Ingram v. State, 280 Ga. App. 467, 634 S.E.2d 430 (2006), cert. denied, 2007 Ga. LEXIS 868 (Ga. 2007).

Trial court did not err in denying the state's motion to introduce other acts evidence in the state's prosecution against the defendant on the charge of rape because, although the trial court did not expressly evaluate in the court's order whether the other acts evidence was relevant to any specific matter at trial - a threshold inquiry - or that the evidence satisfied the prerequisites for admission, the trial court properly focused the court's analysis on whether the other acts evidence (assuming that it was relevant and admissible) should be excluded on the ground that the evidence's probative value was substantially outweighed by the danger of unfair prejudice, and it was not improper for the trial court to frame the court's analysis in that way. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

In a rape case, the trial court was not unaware that excluding evidence under O.C.G.A. § 24-4-403 was an extraordinary remedy that should be applied sparingly because the trial judge stated that the judge would have allowed the other acts evidence if the judge thought it was appropriate, but the trial court believed that the state was attempting to compensate for a weak case by piling on bad character evidence of scant probative value in an effort to undermine the presumption of innocence; and the trial court was clearly concerned that the admission of the other acts would transform what should be a straightforward case into a trial involving three separate incidents, distracting the jury from the issues central to the crime charged. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

- Defendant's argument that the evidence introduced was not sufficient to support defendant's conviction for incest had to be rejected, as defendant's reliance on rape cases to argue defendant's point was in error; the rape statute required proof that penetration had occurred, whereas the incest statute, by contrast, only required proof that sexual intercourse had taken place and the state introduced such proof. Little v. State, 262 Ga. App. 377, 585 S.E.2d 677 (2003).

Offense of burglary is separate and distinct from the sexual offenses committed subsequent to the unlawful entry upon the premises; therefore, the offenses do not merge, even though the evidence utilized to establish the sexual offenses may also be relied upon to establish the felonious intent necessary to prove the burglary. Palmer v. State, 174 Ga. App. 720, 331 S.E.2d 77 (1985).

- Proof of similar offenses committed by the accused in the same locality, about the same time, and where similar methods were employed by the accused in the commission of such offenses, is admissible on his trial for the purpose of identifying him as the guilty party and for the purpose of showing motive, plan, scheme, bent of mind, and course of conduct. Burnett v. State, 236 Ga. 597, 225 S.E.2d 28 (1976).

Eleven-year lapse of time between defendant's similar prior sex offense and the one on trial did not itself render evidence of the prior offense inadmissible. It was one of the more important factors in considering admissibility; once it crossed that threshold, it thereafter affects the weight and credibility of the testimony. Hill v. State, 183 Ga. App. 404, 359 S.E.2d 190 (1987).

In a rape prosecution, similar transaction testimony from the defendant's prior rape victims was properly admitted as the testimony was probative of the defendant's course of conduct, intent, modus operandi, and lustful disposition, and corroborated the victim's testimony that the defendant claimed to have previously raped persons that "nobody would believe." Sanders v. State, 297 Ga. App. 897, 678 S.E.2d 579 (2009).

- Victim of an alleged rape may not be cross-examined as to specific acts of prior sexual intercourse with men other than the accused. Thomas v. State, 234 Ga. 635, 217 S.E.2d 152 (1975).

Proof of present consent in rape trial differs from proof of consent to other crimes. In other crimes the proffered evidence and inference it supports must logically relate within a particular factual context. For example, it is well established that evidence of victim's general character for violence, or testimony concerning specific acts against another, is impermissible. In rape cases, however, proof of prior consent without regard to identity of persons or similarity of circumstances may be admitted to allow jury to weigh, or calculate as it were, the probability of consent with respect to an entire class of "unchaste" women when the court finds that evidence "supports an inference that accused could have reasonably believed that complaining witness consented to conduct complained of." Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981).

Victim's testimony that when she was 13, defendant forced his penis inside her vagina against her will was sufficient to support rape conviction. Edmonson v. State, 219 Ga. App. 323, 464 S.E.2d 839 (1995), overruled on other grounds, Collins v. State, 229 Ga. App. 658, 495 S.E.2d 59 (1997).

Force is a necessary element of the offense of common-law or forcible rape against an under-age victim. Collins v. State, 229 Ga. App. 658, 495 S.E.2d 59, aff'd, 270 Ga. 42, 508 S.E.2d 390 (1998).

Pertinence and admissibility of evidence of complainant's lack of chastity. See Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981).

- Defendant's testimony elicited in prosecution for rape in regard to an incident with a former girlfriend in which he had "pushed her across the face" was relevant, even though it incidentally referred to criminal conduct, and was admissible as it showed defendant's identity, bent of mind, and course of conduct. Jackson v. State, 157 Ga. App. 604, 278 S.E.2d 5 (1981).

- Victim was properly allowed to testify, at defendant's trial for rape and aggravated sodomy, that, during the course of her ordeal, defendant had made the incriminating admission to her that "there's been ten others, ten other women, and you're not the only one." Copeland v. State, 177 Ga. App. 773, 341 S.E.2d 302 (1986).

When defendant's identity as perpetrator of two separate rape offenses was in dispute, the jury's acquittal of defendant on the earlier charge resolved the "identity" factor in his favor and the state could not relitigate the issue; admission of evidence of the prior offense at his later trial on the subsequent offense was reversible error. Lucas v. State, 178 Ga. App. 150, 342 S.E.2d 377 (1986).

- Allowing any question and answer of a physician who examined the victim of an alleged rape which would involve the physician's opinion stated in his report that "this is rape" constituted reversible error. Nichols v. State, 177 Ga. App. 689, 340 S.E.2d 654 (1986).

- Victim need not actually see her assailant penetrate her in order to allege the element of carnal knowledge of the victim; the victim may also give testimony predicated upon information gathered by other senses. Hanvey v. State, 186 Ga. App. 690, 368 S.E.2d 357, cert. denied, 186 Ga. App. 918, 368 S.E.2d 357 (1988).

- In a trial for rape and incest the trial court did not err in permitting the victim to testify as to two prior incidents in which defendant, her father, made sexual advances toward her. Hall v. State, 186 Ga. App. 830, 368 S.E.2d 787 (1988).

Victim's reluctance to actually name aggressor's sex organ did not disallow a finding that that is what she meant by use of the word "something," and the jury could reasonably infer that the "something" defendant assaulted the victim with was his sexual organ. Richie v. State, 183 Ga. App. 248, 358 S.E.2d 648 (1987).

- Rape can be proven although victim is unable to testify because subsequently murdered by assailant. Durham v. State, 243 Ga. 408, 254 S.E.2d 359 (1979).

- Delay in reporting an alleged rape is one circumstance that the jury must consider in determining the credibility of the prosecutrix. That delay may be explained, however, with the decision on credibility left to the jury. Watson v. State, 235 Ga. 461, 219 S.E.2d 763 (1975).

If there is substantial step toward rape, crime would become attempted rape. Bissell v. State, 153 Ga. App. 564, 266 S.E.2d 238 (1980).

Assault, or assault and battery, is necessarily involved in every case of rape. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981).

Construed with O.C.G.A. § 16-5-23. - Offense of rape necessarily includes contact of insulting or provoking nature under O.C.G.A. § 16-5-23. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981).

Construction with O.C.G.A. § 42-1-12. - O.C.G.A. § 42-1-12(a)(7) clearly provides that convictions for rape and crimes relating to rape require registration as a sex offender, and the statute is not unconstitutionally vague. Jenkins v. State, 284 Ga. 642, 670 S.E.2d 425 (2008).

Adultery is not included in offense of rape. Hill v. State, 183 Ga. App. 404, 359 S.E.2d 190 (1987).

Rape and incestuous adultery are different in nature of wrong done and in facts constituting them. Neither includes the other, and the defendant may be convicted of either, with or without allegation of proof of some fact essential to the other. Mosley v. State, 65 Ga. App. 800, 16 S.E.2d 504 (1941).

Carnal knowledge of the female is a fact common to both rape and incestuous adultery. If it is with force and against her will the crime is rape, whether the female be under or over the age of consent and whether she be the defendant's daughter or not. The fact that she is his daughter is immaterial. If she is his daughter and under the age of consent, and the force, if any, used by the defendant was mere authority or influence, the crime is incestuous adultery, and the fact that the force used cannot be said to be that violence which constitutes rape is immaterial. Mosley v. State, 65 Ga. App. 800, 16 S.E.2d 504 (1941).

- Neither rape nor incest is included in the other as a matter of law. Kirby v. State, 187 Ga. App. 88, 369 S.E.2d 274 (1988).

Denial of defendant's motion for a directed verdict of acquittal was proper where defendant's argument that the DNA also matched 500 to 1000 others and where the sufficiency of the corroboration of an accomplice's testimony were jury questions. Robinson v. State, 259 Ga. App. 555, 578 S.E.2d 214 (2003).

Defendant's complaint that the trial court erred in denying the defendant's motion for a directed verdict of acquittal as to the offense of forcible rape was rendered moot because the defendant was not found guilty of that offense. Beaudoin v. State, 311 Ga. App. 91, 714 S.E.2d 624 (2011).

- When a rape and a rape and kidnapping charge were tried jointly, the evidence showed a similar modus operandi, and there was no abuse of the trial court's discretion in denying defendant's motion for severance of the offenses. Davis v. State, 180 Ga. App. 190, 348 S.E.2d 730 (1986).

Trial court did not err in denying the defendant's motion to sever the charges of rape, aggravated assault, kidnapping with bodily injury, and aggravated sodomy arising out of three sexual assaults against three different women because the charges against the defendant clearly showed a recurring pattern of conduct suggesting a common scheme or modus operandi as the victims of the three sexual assaults were adult women who did not know the defendant, all three incidents occurred in DeKalb County within six months of each other, each victim was taken by vehicle to a secluded location before the victims were raped, all three incidents involved a handgun, and semen matching the defendant's DNA profile was found on each victim. Ray v. State, 329 Ga. App. 5, 763 S.E.2d 361 (2014).

- When in a rape case the accused makes a statement which admits the intercourse but falls short of admitting that the intercourse was accomplished by means of force and against the will of the victim or prosecutrix, the statement is insufficient to amount to a confession of rape since force is an essential element of the crime of rape. Jackson v. State, 225 Ga. 553, 170 S.E.2d 281 (1969).

- When the defendant admits intercourse, and the statement in question clearly makes out a case of conspiracy between the defendant and other individuals charged with the same crime; and when, from all reasonable inferences and deductions which may be drawn from the statement it is apparent that all the participants in the crime were exercising and using force or threats of force upon the victim, the defendant, being a participant in the conspiracy, is equally chargeable under the facts related in the statement with the force exerted upon the victim by means of threats of violence and bodily harm visited upon her by his coconspirators even though he himself may not have admitted in his statement to have personally exerted any such force and violence upon the victim. Jackson v. State, 225 Ga. 553, 170 S.E.2d 281 (1969).

- Evidence authorized the jury to find that more than one instance of sexual intercourse with the victim occurred, permitting conviction for each offense (rape and incest) based on separate occasions. Kirby v. State, 187 Ga. App. 88, 369 S.E.2d 274 (1988).

- Defendant was not prejudiced by trial counsel's failure to object to testimony speculating as to the defendant's state of mind because there was no reasonable likelihood that the testimony contributed to the guilty verdict on the lesser charge of attempted rape; the testimony regarding the victim's belief as to why the defendant was following the van in which the victim was traveling was not relevant to the consideration of the charges against the defendant, rape or attempted rape. Gomez-Oliva v. State, 312 Ga. App. 105, 717 S.E.2d 689 (2011), overruled in part by Southall v. State, 300 Ga. 462, 796 S.E.2d 261 (2017).

When the defendant was convicted of rape, aggravated child molestation, and enticing a child for indecent purposes, trial counsel was not ineffective in failing to investigate alternate sources of the victim's pregnancy and injuries because trial counsel testified that identifying an alternate sexual partner might have conflicted with the Rape Shield Statute, O.C.G.A. § 24-4-412; any sexual contact after the crime would not have been relevant to the victim's injuries and would have been highly prejudicial; and, in light of the victim's testimony, the victim's immediate outcry, and the evidence of male DNA found inside the victim and the victim's vaginal injury, it was not reasonably likely that the result of the trial would have been different. Davis v. State, 329 Ga. App. 797, 764 S.E.2d 588 (2014).

Cited in Bearden v. State, 122 Ga. App. 25, 176 S.E.2d 243 (1970); Holland v. State, 127 Ga. App. 145, 193 S.E.2d 56 (1972); Farmer v. Caldwell, 476 F.2d 22 (5th Cir. 1973); Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974); Lowe v. State, 133 Ga. App. 420, 210 S.E.2d 869 (1974); Core v. State, 238 Ga. 448, 233 S.E.2d 200 (1977); Printup v. State, 142 Ga. App. 42, 234 S.E.2d 840 (1977); Eberheart v. State, 239 Ga. 407, 238 S.E.2d 1 (1977); Hooks v. State, 239 Ga. 408, 238 S.E.2d 1 (1977); Johns v. State, 239 Ga. 681, 238 S.E.2d 372 (1977); Coker v. State, 239 Ga. 408, 238 S.E.2d 690 (1977); Waye v. State, 239 Ga. 871, 238 S.E.2d 923 (1977); Holland v. State, 143 Ga. App. 817, 240 S.E.2d 161 (1977); Haney v. State, 144 Ga. App. 885, 242 S.E.2d 757 (1978); Spraggins v. State, 240 Ga. 759, 243 S.E.2d 20 (1978); Lamar v. State, 243 Ga. 401, 254 S.E.2d 353 (1979); Tucker v. State, 243 Ga. 683, 256 S.E.2d 365 (1979); Powers v. State, 150 Ga. App. 25, 256 S.E.2d 637 (1979); Groves v. State, 152 Ga. App. 606, 263 S.E.2d 501 (1979); Clark v. State, 152 Ga. App. 627, 263 S.E.2d 512 (1979); Mathis v. State, 153 Ga. App. 587, 266 S.E.2d 275 (1980); Hudson v. State, 157 Ga. App. 71, 276 S.E.2d 122 (1981); Rozier v. State, 165 Ga. App. 178, 300 S.E.2d 194 (1983); Green v. State, 165 Ga. App. 205, 300 S.E.2d 208 (1983); Jones v. State, 169 Ga. App. 4, 311 S.E.2d 485 (1983); Shepherd v. State, 173 Ga. App. 499, 326 S.E.2d 596 (1985); Yeck v. State, 174 Ga. App. 710, 331 S.E.2d 76 (1985); Gilbert v. State, 176 Ga. App. 561, 336 S.E.2d 828 (1985); Milner v. State, 180 Ga. App. 97, 348 S.E.2d 509 (1986); Ford v. State, 180 Ga. App. 807, 350 S.E.2d 816 (1986); Gunder v. State, 183 Ga. App. 122, 358 S.E.2d 284 (1987); Daniel v. State, 200 Ga. App. 79, 406 S.E.2d 806 (1991); Green v. State, 249 Ga. App. 546, 547 S.E.2d 569 (2001); Moore v. State, 261 Ga. App. 752, 583 S.E.2d 588 (2003); Dawson v. State, 260 Ga. App. 824, 581 S.E.2d 371 (2003); State v. Scott, 265 Ga. App. 387, 593 S.E.2d 923 (2004); Brown v. State, 280 Ga. App. 767, 634 S.E.2d 875 (2006); Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006); Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007); Hyde v. State, 291 Ga. App. 662, 662 S.E.2d 764 (2008); Jennings v. State, 292 Ga. App. 149, 664 S.E.2d 248 (2008); Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292 (2009); Green v. Nelson, 595 F.3d 1245 (11th Cir. 2010); Burke v. State, 316 Ga. App. 386, 729 S.E.2d 531 (2012); Robinson v. State, 342 Ga. App. 624, 805 S.E.2d 103 (2017); Robinson v. State, 258 Ga. 279, 368 S.E.2d 513 (1988); Thompson v. State, 348 Ga. App. 807, 824 S.E.2d 685 (2019); Spikes v. State, 353 Ga. App. 454, 838 S.E.2d 121 (2020); Crawford v. State, 355 Ga. App. 401, 844 S.E.2d 294 (2020); Davenport v. State, Ga. , 846 S.E.2d 83 (2020).

Merger and Other Offenses

Burglary and rape not included offenses.

- Jury's verdicts of acquittal for a burglary charge and conviction for a rape charge were not inconsistent or repugnant, since a verdict of acquittal upon a burglary charge does not necessarily include a finding against a fact essential for a rape conviction. Smith v. State, 173 Ga. App. 625, 327 S.E.2d 584 (1985).

Conviction for cruelty to children did not merge with the rape conviction since the evidence supporting the rape conviction was not the same evidence that supported the cruelty to children conviction. Brown v. State, 190 Ga. App. 678, 379 S.E.2d 598, cert. denied, 190 Ga. App. 897, 379 S.E.2d 598 (1989).

Lesser offense of cruelty to children did not merge into the greater offenses of rape and aggravated child molestation, where the facts that the victim was threatened and terrorized, that she screamed in pain, and that she continued to experience pain and discomfort and would suffer from the venereal diseases she contracted from defendant forever were not needed to prove the elements of rape and aggravated child molestation. Ranalli v. State, 197 Ga. App. 360, 398 S.E.2d 420 (1990).

Crimes of rape and cruelty to children did not merge as a matter of fact, as they constituted separate offenses and proof of separate elements; therefore, because the offenses did not merge, defendant was not punished twice for the same conduct. Currington v. State, 270 Ga. App. 381, 606 S.E.2d 619 (2004).

Defendant's convictions for rape and cruelty to a child did not merge for sentencing purposes, as additional evidence, beyond that necessary to prove rape, existed, specifically, that the rapes caused the victim cruel and excessive physical and mental pain; moreover, after the rapes, the victim was upset, fearful, did not feel safe at home, and cried repeatedly when recounting the episodes to a counselor. Barber v. State, 283 Ga. App. 129, 640 S.E.2d 696 (2006).

Trial court did not err in declining to merge the defendant's convictions of cruelty to a child and rape for purposes of sentencing because each required proof of a fact that the other did not; specifically, the offense of cruelty to a child required, among other things, a showing that the defendant maliciously caused cruel or excessive mental pain to a child while the offense of rape required, among other things, a showing that the defendant had carnal knowledge of the victim forcibly and against the victim's will. Pendley v. State, 308 Ga. App. 821, 709 S.E.2d 18 (2011).

Trial court properly declined to merge the rape and cruelty to children offenses because evidence that the defendant used tape to silence the victim as the victim cried during the abuse and that the defendant caused injury and scarring to the victim's anus that made going to the bathroom painful was required for the latter conviction. Hambrick v. State, 353 Ga. App. 666, 839 S.E.2d 664 (2020).

False imprisonment convictions and rape convictions did not merge, where a rational trier of fact could reasonably have concluded from the evidence that the confinement and detention of the victim far exceeded that which was immediately associated with the acts of sexual intercourse. Moua v. State, 200 Ga. App. 49, 406 S.E.2d 557 (1991).

- Separate offenses of rape and kidnapping with bodily injury were shown where the evidence used to prove the kidnapping was the asportation of the victim from one room to another and bruises she suffered in her struggle with defendant before the subsequent intercourse which supported the rape charge. Roberson v. State, 219 Ga. App. 160, 464 S.E.2d 262 (1995).

- In all cases where defendant is charged with rape, and where evidence under any view thereof would authorize conviction for lesser offense necessarily involved in graver charge, the jury should be instructed that he may be convicted of the lesser offense. Where all evidence shows either completed offense as charged, or no offense, such evidence will not support verdict for one of the lesser grades of the offense, and court should not charge on lesser grades. Hardy v. State, 159 Ga. App. 854, 285 S.E.2d 547 (1981).

Defense counsel was not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 in failing to argue at trial and on appeal that the inmate's statutory rape and incest convictions should have merged into the inmate's rape conviction as a matter of fact since all of the crimes arose out of the same incident, as the crimes of statutory rape and incest were not established by proof of the same or less than all the facts required to establish the crime of rape; the inmate's convictions of statutory rape under O.C.G.A. § 16-6-3 and incest under O.C.G.A. § 16-6-22 were not included pursuant to O.C.G.A. § 16-1-6(1) in the rape conviction under O.C.G.A. § 16-6-1, as statutory rape, which required evidence as to the victim's age and that the victim was not the inmate's spouse, and incest, which required proof of the victim's relation to the inmate, had elements not required for rape. Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006).

Guilty verdict on rape charge is inconsistent with not guilty verdict on aggravated assault charge. Martin v. State, 157 Ga. App. 304, 277 S.E.2d 300, cert. denied, 454 U.S. 833, 102 S. Ct. 133, 70 L. Ed. 2d 112 (1981).

- Since statutory rape requires proof of an element - age - that forcible rape does not, it cannot be a lesser included offense of forcible rape. Hill v. State, 246 Ga. 402, 271 S.E.2d 802 (1980), cert. denied, 451 U.S. 923, 101 S. Ct. 2001, 68 L. Ed. 2d 313 (1981).

- As the defendant agreed at the charge conference, under the facts of the case, no evidence supported a charge on sexual battery as a lesser included offense of rape; the evidence concerning the rape was obviously conflicting as the first victim testified that the defendant raped the victim but the defendant testified that the defendant did nothing wrong, thus a lesser included offense charge was not warranted. Quenga v. State, 270 Ga. App. 141, 605 S.E.2d 860 (2004).

- Where evidence showed that offense of statutory rape as alleged was included in the offense of rape as alleged, the statutory rape count merged into the rape count. Wofford v. State, 226 Ga. App. 487, 486 S.E.2d 697 (1997).

- Jury's verdict of not guilty of rape was not repugnant to and inconsistent with the verdicts of guilty for aggravated sodomy and child molestation. The elements of each of the three crimes charged are different, and the conduct related to each, as evidenced in this case, was also different, distinct, and separate. Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987).

- Double jeopardy was not involved by a jury verdict finding the defendant guilty of rape and child molestation based on the same conduct where the trial court merged the two counts and entered a judgment of conviction and a sentence only on the rape count. Mackey v. State, 235 Ga. App. 209, 509 S.E.2d 68 (1998).

- When, after completing the act of forcible intercourse (rape), defendant drew his gun again, pulled back the hammer, and threatened to shoot both victims if they did not obey his further commands, this second drawing of the deadly weapon was subsequent to, and separate from, the completed offense of rape against the first victim; thus, the evidence regarding the use of force during the incident was not "used up" in the offense of rape, and defendant could properly be convicted of aggravated assault. Ellis v. State, 181 Ga. App. 826, 354 S.E.2d 15 (1987).

- When the evidence in a rape, robbery, and murder case showed that the defendant took some $480.00 from the victim at gunpoint; a gynecologist testified that he found motile sperm in the victim's vagina and cervix, and lacerations indicating forced sexual intercourse; and when the defendant admitted having intercourse with the victim but claimed she consented, the defendant was properly found guilty of rape and armed robbery by the jury as the jury was authorized to do so beyond a reasonable doubt. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980).

- Defendant's child molestation in violation of O.C.G.A. § 16-6-4, rape in violation of O.C.G.A. § 16-6-1, and incest in violation of O.C.G.A. § 16-6-22 charges did not merge as a matter of law or fact because they were separate legal offenses and because the victim's testimony and other evidence showed that the victim suffered well over two separate acts of sexual intercourse and additional instances involving oral and anal sex with the defendant. Allen v. State, 281 Ga. App. 294, 635 S.E.2d 884 (2006).

- Kidnapping, aggravated assault, and rape were separate offenses, completed individually, and did not merge as a matter of fact; thus, the trial court did not err in refusing to merge the kidnapping counts into the aggravated assault and rape counts for purposes of sentencing. Dasher v. State, 281 Ga. App. 326, 636 S.E.2d 83 (2006).

- Defendant's conviction for aggravated assault with intent to rape did not merge into the defendant's rape conviction as the defendant's fondling the victim while threatening to kill the victim were separate and distinct acts of force and intimidation beyond that necessary to accomplish the rape. Williams v. State, 295 Ga. App. 9, 670 S.E.2d 828 (2008).

Aggravated assault and rape convictions did not merge because the assault was complete before the rape and involved a separate and distinct act of force outside that needed to accomplish the rape. Andrews v. State, 328 Ga. App. 344, 764 S.E.2d 553 (2014).

Trial court did not err by failing to merge the rape count with a count of aggravated assault as the defendant's choking of the victim, which supported the assault, occurred prior to the rape and was a separate and distinct act of force and intimidation outside of that necessary to accomplish the rape. Bolden v. State, 335 Ga. App. 653, 782 S.E.2d 708 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206, 789 S.E.2d 391 (2016).

- Because the requirement under the rape statute, O.C.G.A. § 16-6-1, that defendant have forcible carnal knowledge of the victim against the victim's will was not a fact required under the aggravated assault statute, O.C.G.A. § 16-5-21, the aggravated assault with intent to rape charge merged with the rape charge; therefore, the trial court erred in sentencing defendant separately for aggravated assault. Johnson v. State, 298 Ga. App. 639, 680 S.E.2d 675 (2009).

Defendant's conviction for aggravated assault with intent to rape under O.C.G.A. § 16-5-21(a)(1) merged into the defendant's conviction for attempted rape under O.C.G.A. §§ 16-4-1 (criminal attempt) and16-6-1 (rape) because the same evidence supported both convictions and, therefore, the aggravated assault conviction was vacated. Smith v. State, 313 Ga. App. 170, 721 S.E.2d 165 (2011).

Trial court did not err in refusing to merge a kidnapping charge into a rape charge when the evidence authorized the jury to find that defendant, armed with a pistol, forced his way into the victim's car and drove off with the victim to a secluded area where he raped and beat her and moved to another location and again raped and abused the victim and then drove away with her car and the property in the car, leaving the naked victim behind. Clark v. State, 166 Ga. App. 366, 304 S.E.2d 494 (1983).

- Since the evidence established that both sexual battery and rape occurred, and evidence of neither offense was necessary to prove the other, there was no merger, and the trial court did not err in sentencing defendant for both convictions. Trotter v. State, 248 Ga. App. 156, 546 S.E.2d 286 (2001).

- Trial court erred in failing to merge the defendant's rape and aggravated child molestation counts at sentencing; accordingly, although the state properly prosecuted the defendant for both offenses, the trial court should have only convicted and sentenced the defendant for the rape. Defendant's separate conviction and sentence for aggravated child molestation was to be vacated. Lay v. State, 264 Ga. App. 483, 591 S.E.2d 427 (2003).

Count of rape under O.C.G.A. § 16-6-1(a)(2) (carnal knowledge of a female under 16) did not merge into a count of aggravated child molestation under O.C.G.A. § 16-6-4 (immoral or indecent act with a child under 16 with the intent to arouse sexual desire and that act injuring the child) because the two counts arose out of different incidents with the same victim. Jones v. State, 335 Ga. App. 591, 782 S.E.2d 489 (2016).

- Contrary to the defendant's argument, the trial court did not err in failing to merge a conviction for incest, O.C.G.A. § 16-6-22, in one count into a conviction for rape, O.C.G.A. § 16-6-1, in another count, despite the fact that both counts were based on the same act of sexual intercourse because the defendant's conduct established the commission of more than one crime; to establish the crime of rape, the state proved that the defendant had carnal knowledge of the victim, forcibly and against the victim's will, but to establish incest, it was also necessary to prove that the victim had a certain relation to the defendant. Thus, incest was not established by proof of the same or less than all the facts required to establish proof of rape. Dew v. State, 292 Ga. App. 631, 665 S.E.2d 715 (2008).

Defendant's rape and incest convictions did not merge because each crime required proof of an additional fact that the other did not because, to establish the crime of rape, the state had to prove that the defendant lacked consent, which was not an element of incest; and, to establish the crime of incest, the state had to prove that the victim was of a certain relation to the defendant, which was not an element of rape; thus, the trial court did not err in sentencing the defendant for both rape and incest. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).

Court is authorized to charge that female under 14 cannot consent when the indictment contains no allegation as to age. McFall v. State, 235 Ga. 105, 218 S.E.2d 839 (1975), cert. denied, 424 U.S. 969, 96 S. Ct. 1468, 47 L. Ed. 2d 737 (1976).

- When the defendant was on trial for the rape of a 13-year-old female, it was correct for the trial court to have charged the jury to first consider whether the defendant was guilty of rape and to consider his guilt or innocence of child molestation only if the jury found him not guilty of rape. Lamar v. State, 243 Ga. 401, 254 S.E.2d 353, appeal dismissed, 444 U.S. 803, 100 S. Ct. 23, 62 L. Ed. 2d 16 (1979).

- After the defendant was convicted of two counts of rape, the defendant could not show that the defendant was harmed when the trial court failed to notify trial counsel of the court's ruling on the sexual-battery charge before closing arguments, much less plain error, because the defendant could not be found guilty of rape or sexual battery if the jury believed the defense that the defendant had consensual sex with the victims and the victims fabricated the rape allegations; and an argument that the defendant was guilty of sexual battery instead of rape would have been in direct conflict with the defendant's own theory of defense. Seals v. State, 350 Ga. App. 787, 830 S.E.2d 315 (2019).

- When the trial court charged the jury: "If the actual sexual intercourse took place or occurred in a continuing state of circumstances involving force or threats of bodily harm sufficient to create force and the male actually had intercourse with the female in that set of circumstances and he as a reasonable person knew of this ongoing situation and as an or as a reasonable person should have known of the ongoing situation and the force or threats of force involved he would be chargeable with the use of force," and defendant contended the state was thereby relieved of the state's absolute burden of persuasion as to the essential element of force, it was held that the portion of the charge at issue did not create a conclusive and mandatory presumption which would relieve the state of the burden of persuasion on the element of force as contended by the defendant, since when considering this excerpt, the charge as a whole had to be considered. Williamson v. State, 186 Ga. App. 589, 367 S.E.2d 863 (1988).

- Trial court committed reversible error by refusing to give defendant's request to charge the lesser offense of child molestation, where although the evidence was sufficient to support a conviction for rape, a rational trier of fact could have found that defendant was not guilty of rape but guilty of the lesser offense. Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1592, 94 L. Ed. 2d 781 (1987).

- Trial court correctly charged the jury as to the rape count of the indictment and its lesser included offenses of statutory rape and sexual battery and properly instructed the jury as to the state's burden to prove the defendant's guilt beyond a reasonable doubt, substantially in accordance with the pattern charge because there was no objectionable summary of the reasonable doubt standard as an honest belief, and while the best practice would not have been to employ the word "believe" in the court's charge, the trial court did not improperly summarize the burden of proof or otherwise confuse the jury in doing so; the trial court made no attempt to summarize the court's reasonable doubt charge as an honestly held belief or to otherwise explain it, and twice after giving the charge, the trial court made reference to the court's reasonable doubt charge as initially given by instructing the jury that the jury could convict the defendant of rape and child molestation if the jury believed beyond a reasonable doubt that the defendant was guilty thereof. Alexander v. State, 308 Ga. App. 245, 707 S.E.2d 156 (2011).

Trial court did not err in instructing the jury on the material elements of rape as the charge adequately differentiated between the elements of rape and the portion of the charge dealing with force precisely tracked the language previously used and accepted by the court. Gordon v. State, 327 Ga. App. 774, 761 S.E.2d 169 (2014).

- Charge which permitted the jury to find the defendant guilty of forcible rape pursuant to former Code 1933, § 26-2001 (see now O.C.G.A. § 16-6-1), under a definition of statutory rape pursuant to former Code 1933, § 26-2018 (see now O.C.G.A. § 16-6-3) and to impose a sentence of life imprisonment which could not be imposed for statutory rape was error. Robinson v. State, 232 Ga. 123, 205 S.E.2d 210 (1974).

It was erroneous to charge on child molestation as lesser included offense when indictment does not allege that the victim is under the age of sixteen. Heggs v. State, 246 Ga. App. 354, 540 S.E.2d 643 (2000).

Charge which failed to define the elements of rape, and which was compounded by gratuitous references to irrelevant matters such as whether "an actual theft occurred" and "criminal negligence," was substantially in error, was harmful as a matter of law, and deprived defendant of his right to a fair trial. Phelps v. State, 192 Ga. App. 193, 384 S.E.2d 260 (1989).

Refusal to give a requested charge that "in all cases there exists the presumption that no crime has been committed," is not error when the victim's testimony, if believed by the jury, was sufficient direct evidence to establish a corpus for the offenses of rape, burglary, and aggravated sodomy alleged, and the trial court charged the jury the general charge on the presumption of innocence. Smith v. State, 180 Ga. App. 422, 349 S.E.2d 279 (1986).

- Trial court did not err by convicting defendant of statutory rape though the indictment cited only rape as defendant requested the statutory rape charge and, therefore, could not complain of a purported error that defendant created. Freeman v. State, 291 Ga. App. 651, 662 S.E.2d 750 (2008).

- Trial court did not err by failing to give curative or limiting instructions to the jury concerning testimony by the victim of the psychological effect of the offense between the time of the offense and trial since there was no objection during this testimony, and defendant's counsel proceeded through cross-examination of the victim, an out-of-court evidentiary hearing, and a recess at the conclusion of the victim's testimony before raising an objection to the testimony of the victim as to the psychological effect this incident had upon her. By failing to object contemporaneously with the testimony, and by proceeding to cross-examine the witness, trial counsel waived the error. Smith v. State, 180 Ga. App. 422, 349 S.E.2d 279 (1986).

- Trial court did not err by failing to charge the jury that child molestation was a lesser included offense of rape since defendant subsequently withdrew his written request for such a charge. Brady v. State, 206 Ga. App. 497, 426 S.E.2d 15 (1992).

- Even though defendant's indictment on rape charges under O.C.G.A. § 16-6-1 failed to allege the victim's age, because the evidence clearly showed that the victim was under 16, the evidence removed the state's requirement to prove that the rape was against the victim's will. Taylor v. State, 264 Ga. App. 665, 592 S.E.2d 148 (2003).

- Trial court's order limiting the defendant's recross-examination and the trial court's charge to the jury on the victim's capacity to consent did not warrant reversal of the defendant's rape conviction, as: (1) the information elicited by the defendant's counsel on recross would have been cumulative of evidence already received; and (2) the Court of Appeals of Georgia had previously upheld a similar charge with identical language to the charge given herein. Hopson v. State, 281 Ga. App. 520, 636 S.E.2d 702 (2006).

With regard to a defendant's convictions for rape, two counts of kidnapping, three counts of child molestation, and aggravated assault, because the evidence of the defendant's guilt in the rape of one minor victim was overwhelming, and because the defendant's defense of mistaken identity did not place the element of force at issue, the trial court's erroneous jury instruction that provided that sexual acts directed towards children were presumed under the law to be forcible and against the will of the child was harmless. Stover v. State, 293 Ga. App. 210, 666 S.E.2d 602 (2008).

- In a prosecution for rape, a good character charge was erroneous as: 1) the charge failed to inform the jury that the defendant's good character was a substantive fact, and that evidence of good character had to be considered in connection with all other evidence; and 2) the charge failed to instruct the jury that good character in and of itself could be sufficient to create a reasonable doubt as to guilt. Hobbs v. State, 299 Ga. App. 521, 682 S.E.2d 697 (2009).

- While the indictment alleged that the defendant had carnal knowledge of a child under 16 years of age and the jury charge stated that the defendant could be convicted of rape for having carnal knowledge of a female under 10 years of age, there was no error because the evidence supported a determination that the victim was under 10 and the defendant did not challenge the sufficiency of that evidence. Brown v. State, 315 Ga. App. 115, 726 S.E.2d 612 (2012), cert. denied, No. S12C1239, 2012 Ga. LEXIS 983 (Ga. 2012).

Defendant's claim that the trial court erred in charging the jury that the victim's testimony, even without more, was sufficient to sustain a rape conviction because the trial court failed to buttress the charge with an additional charge regarding the state's burden of proof failed because the charge given was a correct statement of the relevant law, provided the statutory definition of the crime, and stated that the state had to prove each element beyond a reasonable doubt. Pye v. State, 322 Ga. App. 125, 742 S.E.2d 770 (2013).

- Given that the defendant's requested charge on penetration was given, the defendant failed to demonstrate how the trial court's penetration charge, which was an accurate statement of the law, violated the defendant's due process rights. The charge did not instruct the jury that rape could be committed in a manner different than charged in the indictment. Liger v. State, 318 Ga. App. 373, 734 S.E.2d 80 (2012).

- In a rape case, the trial court did not permit the state to shift the burden of proof by arguing during closing that the defendant should have performed DNA testing of the victim's clothing and admitted the results at trial because it was permissible for a prosecutor, in closing argument, to urge the jury to draw reasonable deductions from a defendant's failure to produce purportedly favorable witnesses; the prosecutor's comments were made immediately after defense counsel's comments regarding the state's failure to conduct DNA testing of the victim's clothing; and the prosecutor contemporaneously emphasized that the state bore the burden of proof and that the burden never shifted to the defense. Orengo v. State, 339 Ga. App. 117, 793 S.E.2d 466 (2016), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019).

- Sequential charge on rape and sexual battery was not improper and did not constitute plain error as the evidence did not support a sexual-battery conviction; and there was no language in the challenged instruction on rape and sexual battery suggesting that the jury was required to reach a unanimous verdict as to rape before considering the lesser-included offense of sexual battery. Seals v. State, 350 Ga. App. 787, 830 S.E.2d 315 (2019).

Sufficiency of Evidence

Proof of force.

- Defendant's threat to the nine year old victim that she "would get a spanking" if she told anybody was sufficient to prove force in a prosecution for rape. Johnson v. State, 216 Ga. App. 858, 456 S.E.2d 251 (1995).

Victim's testimony that when she was 13, defendant forced his penis inside her vagina against her will was sufficient to support rape conviction. Edmonson v. State, 219 Ga. App. 323, 464 S.E.2d 839 (1995), overruled on other grounds, Collins v. State, 229 Ga. App. 658, 495 S.E.2d 59 (1997).

Victim's testimony that defendant started exploiting her sexually when she was under five years old, and that she did not tell her mother because she was afraid of what defendant might do, and that defendant told her that if she told anyone, she and her mother would be out on the street was sufficient to show force required to support forcible rape conviction. Gibbins v. State, 229 Ga. App. 896, 495 S.E.2d 46 (1998).

Rational trier of fact could reasonably have found that the defendant had forcible sexual intercourse with the victim where the ten-year-old victim testified that she did not want the defendant to put his penis in her vagina and that she did not ask him to do it and, further, that she had to ask him to stop more than once before he stopped. Casey v. State, 237 Ga. App. 461, 515 S.E.2d 429 (1999).

Victim's statement that she was aware that defendant had previously "stuck a dude in the neck with a screwdriver" was relevant and material to one of the required elements of rape and the fact that it may have incidentally placed defendant's character in issue did not make it inadmissible. Johnson v. State, 238 Ga. App. 677, 520 S.E.2d 221 (1999).

Evidence was sufficient to support the charge that defendant had carnal knowledge of the victim forcibly under O.C.G.A. § 16-6-1(a)(1) since the victim testified that defendant threatened to whip the victim if the victim told anyone; thus, the victim's lack of resistance was induced by fear amounting to force. Jenkins v. State, 259 Ga. App. 87, 576 S.E.2d 68 (2003).

Contrary to defendant's argument, the state adequately proved the element of force required to convict defendant of rape under O.C.G.A. § 16-6-1(a), where the victim, defendant's foster child, who was five years old at the time of the crime, testified that defendant penetrated the child, which hurt the child, and that the child did not tell the child's secret because defendant told the child that if the child did, the child would not see the child's family again. Pollard v. State, 260 Ga. App. 540, 580 S.E.2d 337 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Sufficient evidence of force supported the rape conviction under O.C.G.A. § 16-6-1(a)(1); there was evidence that defendant told the child that the child would be spanked or punished if the child told anyone about the sexual offenses, the child was physically punished when the child's sibling reported the sexual abuse, and the child testified that the child was made to have sex with the parent and that defendant ordered the child to take the child's clothes off. Zepp v. State, 276 Ga. App. 466, 623 S.E.2d 569 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

Trial court properly denied the defendant's motion for a directed verdict of acquittal, and the defendant's rape conviction was upheld on appeal, given the victim's testimony at trial that the defendant's sexual organ penetrated the victim's after telling the defendant to stop was sufficient in and of itself, and no evidence was presented that directly contradicted this statement; hence, the jury had the right to accept the victim's testimony depicting non-consensual, forcible intercourse, as satisfying the requirements of O.C.G.A. § 16-6-1. Scott v. State, 281 Ga. App. 106, 635 S.E.2d 582 (2006).

There was sufficient evidence to convict the defendant of rape under O.C.G.A. § 16-6-1(a)(1); the victim was age 12 at the time and was unable to give legal consent, and the victim's testimony about the victim's fear of the defendant and the pain the victim felt during the rape constituted force sufficient to convict the defendant of rape. Hutchens v. State, 281 Ga. App. 610, 636 S.E.2d 773 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

At trial, when the victim testified that the defendant held a gun to the victim's head and forced the victim to have sex with the defendant against the victim's will, such testimony was sufficient, in and of itself, to sustain the defendant's conviction of rape. Harris v. State, 283 Ga. App. 374, 641 S.E.2d 619 (2007).

Sufficient evidence existed to establish that an act was committed forcibly against defendant's step-daughter by him based on the child's testimony that defendant would take off the child's clothes, that it felt nasty when defendant was touching her, and that the child did not immediately tell the mother about defendant's acts because the child did not want to be hurt; additional testimony included the child stating that she ran away from home once to avoid defendant's actions and, during an interview with a social worker, the child pointed to scars and marks on the child's body caused by defendant. Stroud v. State, 284 Ga. App. 604, 644 S.E.2d 467 (2007), cert. denied, No. S07C1137, 2007 Ga. LEXIS 506 (Ga. 2007).

Trial court did not err by denying a defendant's motion for a directed verdict of acquittal on a rape charge as the victim testified that the first time the victim had intercourse with the defendant, the defendant grabbed the victim's hands and threw the victim on the couch; that the victim was scared and crying; and that the defendant warned the victim that the victim would be run out of the apartment if the victim told a parent. Such evidence was sufficient to prove the element of force necessary to support the rape conviction. Mora v. State, 295 Ga. App. 641, 673 S.E.2d 23 (2009).

Conviction of rape, O.C.G.A. § 16-6-1(a)(1), was supported by sufficient evidence because the victim, the defendant's daughter, specifically testified that the defendant forced the daughter to have sex with the defendant against the daughter's will, which testimony, although conclusory, sufficed to show the element of force; the state also proved force by circumstantial evidence by establishing that, for four years, the defendant had forced the daughter to suffer multiple acts of child molestation, despite the daughter's demands that the defendant stop and despite the daughter's repeated efforts to pull or get away from the defendant. When the daughter finally told the daughter's mother of the abuse, the mother disbelieved the daughter and accused the daughter of lying, and, since the victim's outcry regarding the prior molestation was ignored, the jury was authorized to find that, from the victim's perspective, resistance in a subsequent incident would have been futile. Bradberry v. State, 297 Ga. App. 679, 678 S.E.2d 131 (2009).

Evidence was more than sufficient to authorize a jury's verdict that the defendant was guilty beyond a reasonable doubt of rape because the victim's testimony that "it hurt" when the defendant pushed his penis in her vagina and that he threatened to put her family out of his house if she told her parents or if she refused sexual contact was more than sufficient evidence of force; the jury was authorized to consider that the victim failed to initially disclose the incidents because she was fearful of the defendant and that the defendant yelled at the victim when she moved during intercourse as additional evidence of his forcible acts, and the victim's testimony, together with her immediate and consistent outcry to her father, law enforcement, and an emergency room pediatrician, provided the jury with ample evidence of penetration. Matlock v. State, 302 Ga. App. 173, 690 S.E.2d 489 (2010).

State was not required to prove that a rape victim was physically injured in order to establish that sex with a defendant was forcible and nonconsensual in violation of O.C.G.A. § 16-6-1(a)(1). The victim's testimony about the forcible nature of the defendant's conduct was sufficient, and the victim made an immediate outcry. Watson v. State, 304 Ga. App. 128, 695 S.E.2d 416 (2010).

State properly showed the elements of force and lack of consent in prosecuting a defendant for the repeated rape of the defendant's daughter under O.C.G.A. § 16-6-1(a) by demonstrating that the victim had initially resisted, that the defendant had threatened the victim and made the victim financially dependent, and that an earlier outcry had resulted in dismissed charges. Williams v. State, 304 Ga. App. 592, 696 S.E.2d 512 (2010).

Victim's testimony that the victim pretended to be asleep because the victim was scared and that when the victim failed to obey the defendant's command to open the victim's legs, the defendant pushed the victim's legs open, was sufficient evidence of force to support the defendant's rape conviction. Wynn v. State, 322 Ga. App. 66, 744 S.E.2d 64 (2013).

Trial court did not err by allowing testimony regarding alleged acts of violence between the defendant and the victim's mother because the evidence was otherwise relevant in that the evidence shed light on the force element of rape, which was that the defendant told the victim that the defendant would hurt the victim's mother if the victim refused the defendant's sexual advances. Hunt v. State, 336 Ga. App. 821, 783 S.E.2d 456 (2016).

Evidence was sufficient to support the defendant's convictions for rape and two counts of aggravated sodomy based on the testimony of the victim as to the force and violence used by the defendant as well as the testimony of a doctor who had examined the victim, who indicated that signs of possible injuries to the victim's vaginal cavity and anal region were consistent with the victim's story that the victim was forcibly penetrated. Haslam v. State, 341 Ga. App. 330, 801 S.E.2d 61 (2017).

- Even though the act was not accompanied by an overwhelming show of force, nor by a substantial degree of violence or resisted by the victim vigorously with great outcry, the juvenile court was warranted in finding defendant guilty of rape beyond a reasonable doubt. J.B. v. State, 171 Ga. App. 373, 319 S.E.2d 465 (1984).

- When a defendant was charged with assault with intent to commit rape but did not actually have carnal knowledge of the victim as defined by O.C.G.A. § 16-6-1 there was evidence, although circumstantial insofar as intent is concerned, sufficient to establish that the defendant assaulted the victim with intent to commit rape. Butler v. State, 194 Ga. App. 895, 392 S.E.2d 324 (1990).

- When the jury found that defendant raped the victim, but was unable to find that he committed aggravated assault, there was no inconsistency in the verdict. Cowart v. State, 177 Ga. App. 107, 338 S.E.2d 534 (1985).

Defendant's rape conviction was proper, even though defendant was acquitted of kidnapping with bodily injury, false imprisonment, and aggravated assault, as Georgia did not recognize the inconsistent verdict rule; further, the convictions were not necessarily inconsistent as the jury could have found that defendant raped the victim, but did not commit the other crimes. Stevenson v. State, 272 Ga. App. 335, 612 S.E.2d 521 (2005).

- Although defendant asserted that a logical connection exists between prior treatment for alcohol and drug abuse and present ability to remember whether one consented to have sex, the trial court correctly ruled that the victim's previous treatment for alcohol and drug abuse was absolutely irrelevant to the issue of consent. Kennard v. State, 180 Ga. App. 522, 349 S.E.2d 470 (1986).

- Trial court did not err in admitting evidence of a prior rape which the defendant had committed some nine years earlier since there were striking similarities between the prior offense and the offense for which the defendant was on trial. In both instances, the defendant had beaten and sexually assaulted an elderly black woman in her home at night, after gaining access to the home through a window and then finding his way to the bedroom by lighting matches. Hall v. State, 180 Ga. App. 366, 349 S.E.2d 255 (1986).

Defendant was charged with raping a mentally retarded 27-year-old. Evidence that two years earlier the defendant was convicted of taking indecent liberties with an eight- and an 11-year-old child was properly admitted as the evidence was probative to show the defendant's lustful disposition toward persons of limited mental capacity, and the evidence's relevance outweighed any prejudice. Kent v. State, 294 Ga. App. 134, 668 S.E.2d 442 (2008).

During the defendant's trial for rape, the trial court did not err by permitting the state to present evidence of a prior similar transaction because the prior transaction evidence was proper and not foreclosed by collateral estoppel since identity and commission of the act were not at issue in the first trial; identity was not an issue in the prior case because the defendant claimed that consensual sex, and in the case before the trial court, identity was one of the purposes for which the state sought to have the similar transaction evidence admitted since the defendant claimed that the defendant did not know the victim and had not raped the victim. Bell v. State, 311 Ga. App. 289, 715 S.E.2d 684 (2011).

Under the preponderance of the evidence standard, the trial court did not err in finding that there was sufficient evidence that the two prior rapes occurred and were committed by the defendant to authorize their admission at trial because, inter alia, both victims positively identified the defendant as their assailant in photographic lineups. Miller v. State, 325 Ga. App. 764, 754 S.E.2d 804 (2014).

- When there was no question as to whether the defendant was the perpetrator of the similar offense and the modus operandi of the defendant was the same, evidence of the similar offense was admissible to show the defendant's bent of mind to commit rape if his victims resisted his advances. Davis v. State, 180 Ga. App. 190, 348 S.E.2d 730 (1986).

Trial court was authorized to find that the probative value of the similar transaction evidence outweighed its prejudicial effect as the defendant's prior rapes were relevant and admissible to prove the defendant's bent of mind, course of conduct, and lustful disposition, and to corroborate the current rape victim's testimony of no consent. Miller v. State, 325 Ga. App. 764, 754 S.E.2d 804 (2014).

- In a trial for rape in 1985, when there was no similarity between the rapes in 1973 and the offense charged, and no logical connection between the prior offenses and the offense charged, the evidence of prior offenses was not admissible as an exception to the general rule that evidence of independent crimes is inadmissible at the trial of the crime charged. Wimberly v. State, 180 Ga. App. 148, 348 S.E.2d 692 (1986).

- When the only issue was whether the act of sexual intercourse was with or without the consent of the prosecutrix, and malice, intent, motive, etc., were not relevant, considering the sharp conflict in the testimony, the admission of the evidence of the two prior rapes was harmful error. Wimberly v. State, 180 Ga. App. 148, 348 S.E.2d 692 (1986).

- Trial court simply disagreed that the other acts evidence was especially probative of the credibility of the defendant and the victim, given the lack of similarity between the other acts evidence of child molestation and the charged offense of rape, the decade separating the other acts from the charged offense, and the defendant's immaturity at the time the other acts were committed; however, the trial court believed that, under the circumstances, admitting extrinsic evidence of acts of alleged child molestation would lure the jury into finding the defendant guilty based on proof that was not specific to the crime charged, thereby infecting the proceedings with unfair prejudice and undermining the presumption of innocence. State v. Dowdell, 335 Ga. App. 773, 783 S.E.2d 138 (2016).

- In a prosecution for rape and other crimes, DNA evidence was properly admitted as detectives testified that buccal swabs were obtained from the defendant only after the defendant consented to give a DNA sample and waived in writing the defendant's Miranda rights. Sanders v. State, 297 Ga. App. 897, 678 S.E.2d 579 (2009).

- When, while interviewing the victim, the sheriff, suddenly and without any warning, intentionally removed a knife from the sheriff's pocket and opened it in front of her and the sheriff described the victim's reaction for the jury as "almost hysterics . . . she screamed, she cried, she threw up her hands; she tried to get away from me. There was a tremendous reaction," it was held that the "state of mind" of the victim was that externally induced by the actions of the testifying witness at some remote point following the incident in question, it was not a part of the continuation of the main transaction and was not relevant to elucidate it, and it was, therefore, error to admit the sheriff's testimony. Kennard v. State, 180 Ga. App. 522, 349 S.E.2d 470 (1986).

- Penetration of the female sexual organ by the sexual organ of the male which is necessary to constitute rape need be only slight. It is not necessary that the vagina shall be entered or the hymen ruptured; the entering of the anterior of the organ, known as the vulva or labia, is sufficient. Hall v. State, 29 Ga. App. 383, 115 S.E. 278 (1923); Lee v. State, 197 Ga. 123, 28 S.E.2d 465 (1943); Addison v. State, 198 Ga. 249, 31 S.E.2d 393 (1944); Long v. State, 84 Ga. App. 638, 66 S.E.2d 837 (1951); Payne v. State, 231 Ga. 755, 204 S.E.2d 128 (1974); Jackson v. State, 157 Ga. App. 604, 278 S.E.2d 5 (1981).

- Defendant's conviction for rape was reversed where, although there was evidence that injuries to the victim's vagina were consistent with insertion of a wedge-shaped object, the evidence did not show that the victim's vagina was penetrated by a male sex organ. Newton v. State, 259 Ga. 853, 388 S.E.2d 698 (1990).

- Defendant was entitled to a directed verdict of acquittal on the rape charge under O.C.G.A. § 16-6-1 as the state presented no evidence of force; the victim did not testify as to any use of force, physical or mental, and talking the victim into having sex was not sufficient. Howard v. State, 281 Ga. App. 797, 637 S.E.2d 448 (2006).

- In a defendant's prosecution for being a party to rape under O.C.G.A. §§ 16-2-20 and16-6-1(a)(1), there was sufficient evidence that rapes of the 11-year-old victim, who was the defendant's child, took place during the time period specified in the indictment; the jury could have concluded that at least one rape took place during this time period because the defendant, the defendant's children, including the victim, and the rapist moved to a new house after the rapist's release from jail at the beginning of the time period and lived there until the end of the time period when the victim was removed from the home, a neighbor testified that the victim said during that time period that the rapist was having sex with the victim at the new house, and the victim told a psychotherapist that the rapist began abusing the victim at a previous residence and continued to do so at the new house. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).

- See Trusty v. State, 237 Ga. App. 839, 517 S.E.2d 91 (1999), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019); Alford v. State, 243 Ga. App. 212, 534 S.E.2d 81 (2000).

DNA evidence taken from deep in a paralyzed rape victim's vagina was sufficient to support the jury's finding that penetration had occurred even though the victim, because of her condition, was unable to testify to the fact of penetration. Knight v. State, 251 Ga. App. 145, 553 S.E.2d 670 (2001).

Defendant's conviction for rape was affirmed because, based on the testimony of the nine-year-old victim and the emergency room nurse who examined the victim, the jury was authorized to conclude that defendant's sex organ penetrated the victim's sexual aperture in violation of O.C.G.A. § 16-6-1. Lay v. State, 264 Ga. App. 483, 591 S.E.2d 427 (2003).

In defendant's prosecution for rape, the evidence was sufficient to show the penetration necessary to sustain a rape charge under O.C.G.A. § 16-6-1(a) because the victim was found with blood on the victim's private parts, and the victim also sustained internal tears, which were consistent with forcible intercourse. Winkfield v. State, 275 Ga. App. 456, 620 S.E.2d 670 (2005).

Evidence was sufficient for a rational trier of fact to find the defendant guilty of aggravated sodomy of one victim and rape and aggravated sodomy of a second victim because the jury was authorized to conclude, based on a nurse's testimony and the medical evidence, that penetration occurred since the nurse was properly qualified as an expert in sexual assault examination and testified that the first victim's external injuries established the potential for penetration; clumps of hair were found in the second victim's trailer, and the defendant's DNA matched the DNA found on the hair. Blash v. State, 304 Ga. App. 542, 697 S.E.2d 265 (2010).

Evidence was sufficient to convict the defendant of rape because the victim testified to drinking something the defendant gave the victim and that the victim could only recall bits and pieces of what happened between about 8:00 P.M. and 12:30 A.M.; when the victim's friend knocked on the bedroom door where the defendant and the victim were, the defendant remarked that the defendant was almost finished; the defendant displayed a used condom when the defendant exited the bedroom; and the victim's underwear and tampon had been removed and the victim's vagina was sore. Mayes v. State, 336 Ga. App. 55, 783 S.E.2d 659 (2016).

- See Williams v. State, 247 Ga. App. 99, 543 S.E.2d 408 (2000).

Evidence supported defendant's rape conviction, including the penetration element, as the 31-year-old mentally retarded victim was left in defendant's care, defendant was found naked standing over the victim with the victim's underwear pulled aside to reveal the victim's genitals, an examination revealed recent sexual trauma and sperm, and defendant had committed a similar offense. Page v. State, 271 Ga. App. 541, 610 S.E.2d 171 (2005).

- Victim's testimony that the accused raped the victim, coupled with medical evidence and testimony concerning the victim's actions and demeanor following the rape, is sufficient evidence to authorize a conviction. Gray v. State, 153 Ga. App. 183, 265 S.E.2d 81 (1980).

Evidence was sufficient to support the defendant's conviction for rape because there was medical evidence of penetration, the victim selected the defendant from a photographic lineup, the rape kit was submitted for comparison with a cheek swab taken from the defendant, and the substances found on the victim revealed semen and DNA from the defendant. Neal v. State, 308 Ga. App. 551, 707 S.E.2d 503 (2011).

Evidence was sufficient to enable any rational trier of fact to find the defendant guilty beyond a reasonable doubt of two counts of rape under O.C.G.A. § 16-6-1(a)(1) because the teenage victim testified that the defendant threatened to harm the victim's family if the victim did not have sex with the defendant. Moreover, the victim believed the defendant, as the defendant beat the victim with a shovel, beat the victim's little brother repeatedly, and induced the victim with false promises to travel from Mexico to the United States, where the defendant kept the victim a virtual prisoner in the defendant's apartment. Arellano-Campos v. State, 307 Ga. App. 561, 705 S.E.2d 323 (2011), cert. denied, No. S11C0801, 2011 Ga. LEXIS 484 (Ga. 2011).

Evidence presented at trial was sufficient to authorize a rational jury to find the defendant guilty beyond a reasonable doubt of rape, aggravated sodomy, aggravated assault with intent to rape, and simple battery because the victim's testimony, standing alone, could sustain the convictions; the jury was entitled to take into account similar transaction evidence for the purpose of showing the defendant's intent, bent of mind, and course of conduct, and while the defendant testified to a different version of what transpired, it was the exclusive role of the jury to determine witness credibility and to choose what evidence to believe and what to reject. Alvarez v. State, 309 Ga. App. 462, 710 S.E.2d 583 (2011).

Trial court did not err in convicting the defendant of rape, O.C.G.A. § 16-6-1(a)(1), sexual battery, O.C.G.A. § 16-6-22.1(b), aggravated battery, O.C.G.A. § 16-5-24(a), and assault, O.C.G.A. § 16-5-20(a)(1), because the victim's testimony that the defendant raped, sodomized, punched, burned, and threatened to kill the victim was sufficient to authorize the defendant's convictions. Harris v. State, 308 Ga. App. 523, 707 S.E.2d 908 (2011).

Evidence was sufficient to authorize the jury to find the defendant guilty of statutory rape beyond a reasonable doubt because the defendant befriended the 12-year-old victim, and on various occasions the defendant engaged in sexual contact with the victim; the defendant fondled the victim's breasts and vaginal area, inserted his finger into her vagina, and inserted his penis into her mouth and vagina. Beaudoin v. State, 311 Ga. App. 91, 714 S.E.2d 624 (2011).

Evidence was sufficient to show both force and lack of consent because the victim stated that the defendant refused to stop when the victim told the defendant that the victim did not want to have sex with the defendant; the defendant repeatedly had sexual intercourse with the victim, threatening the victim not to tell anyone. Davenport v. State, 316 Ga. App. 234, 729 S.E.2d 442 (2012).

Defendant's conviction for aggravated assault and rape was affirmed because there was no evidence of tampering or contamination and the trial court properly admitted the evidence from the rape kit and the defendant's DNA matched that of the victim's attacker and the similar transaction evidence that the defendant had committed another rape of an exotic dancer was sufficient to support the conviction. Mickens v. State, 318 Ga. App. 601, 734 S.E.2d 438 (2012).

Evidence authorized trial court to conclude beyond a reasonable doubt that defendant had carnal knowledge of the victim forcibly and against the victim's will. Sims v. State, 167 Ga. App. 479, 306 S.E.2d 732 (1983).

When the state produced evidence that the victim had been forcibly assaulted around the vaginal area, and although the medical examiner testified that the examiner found no sperm and only trace elements of seminal fluid, the position of the victim's body - sweater open, slip pulled up, pantyhose and panties pulled down - was entirely consistent with the jury's conclusion that a rape occurred, and although the defendant argued that the injury could have been accomplished with a foreign object such as a stick, a reasonable juror could have found beyond a reasonable doubt that the victim was raped. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).

When the defendant argued that there was no evidence of the use of force by the defendant or any evidence that he had knowledge of any use of force, but contrary to the defendant's assertion, the victim testified as to pleading with the defendant to release her, that the defendant refused to do so and continued having vaginal intercourse with her, a rational trier of fact could reasonably have found from the evidence adduced at trial proof of the defendant's guilt beyond a reasonable doubt of the offense of rape. Williamson v. State, 186 Ga. App. 589, 367 S.E.2d 863 (1988); Ward v. State, 205 Ga. App. 584, 423 S.E.2d 288 (1992).

Even excluding the DNA tests, the evidence was overwhelming as to the defendant's guilt. Morris v. State, 212 Ga. App. 42, 441 S.E.2d 273 (1994).

Rational trier of fact could have found beyond a reasonable doubt that defendant was guilty of the offense of rape as convicted. Daniels v. State, 212 Ga. App. 617, 442 S.E.2d 483 (1994).

Evidence was sufficient to support the defendant's conviction of rape of the victim as it showed the defendant had carnal knowledge of the victim and even though the victim had difficulty in initially identifying the attacker, the victim was later able to recall more specific details linking the defendant to the crime. Hawkins v. State, 254 Ga. App. 868, 563 S.E.2d 926 (2002).

Evidence was sufficient under O.C.G.A. § 16-6-1 to support a rape conviction when it was shown that the defendant put his knee in the victim's back, pulled her hands behind her, and then tied her hands behind her back with a black cord or piece of rope. Byrd v. State, 259 Ga. App. 15, 576 S.E.2d 35 (2002).

Evidence was sufficient to convict defendant of rape and aggravated robbery given the victim's identification of defendant as the assailant, defendant's incriminating statements to police about the attack, and the victim's injuries, which included anal bruising. McMorris v. State, 263 Ga. App. 630, 588 S.E.2d 817 (2003).

When the victim alleged that the defendant robbed and raped the victim at knifepoint, identified the defendant from a photo lineup and at trial, DNA on the victim's clothes matched that of the defendant, the defendant testified the defendant had consensual sex with the victim for money, and the detective who first interviewed the defendant testified that the defendant never told the detective that the defendant had consensual sex, the evidence was sufficient to convict the defendant of rape. Munn v. State, 263 Ga. App. 821, 589 S.E.2d 596 (2003).

Victim's testimony, which was supported by statements the victim made to family, friends, and investigators regarding sexual acts the defendant committed upon the victim, together with the medical findings of the pediatrician who examined the victim were completely consistent with the victim's allegation of abuse by sexual intercourse; therefore, the evidence was more than sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of rape. Wilkins v. State, 264 Ga. App. 524, 591 S.E.2d 445 (2003).

Evidence was sufficient to support the defendant's rape conviction when a victim testified that the defendant forced the victim to have sex with the defendant, that the victim did not want to engage in such conduct, and that the defendant's penis penetrated the victim's vagina during sex. Evans v. State, 266 Ga. App. 405, 597 S.E.2d 505 (2004).

When the victim's and a police officer's testimonies about the crime location established venue, and the defendant induced a jury question as to whether a toy gun was a firearm but did not object to the trial court's instruction, the defendant was properly convicted of rape, false imprisonment, and possession of a firearm during the commission of a felony under O.C.G.A. §§ 16-5-41(a),16-6-1(a), and16-11-106(b). Bravo v. State, 269 Ga. App. 242, 603 S.E.2d 669 (2004).

Victim's testimony that the defendant forced the victim, through the defendant's use of a knife, to drive to a remote location and submit to sexual intercourse was sufficient to support the defendant's conviction for rape. Pye v. State, 322 Ga. App. 125, 742 S.E.2d 770 (2013).

Convictions for burglary, rape, and aggravated battery were supported by sufficient evidence as the record showed that seminal fluid and the defendant's DNA were found in the victim's underwear, the defendant's alibi did not check out when police attempted to verify the alibi, and it was undisputed that the defendant had knowledge of how to enter the house through a broken door without a key, having previously been in a relationship with the victim's daughter. McEady v. State, Ga. App. , 846 S.E.2d 94 (2020).

Since only minimal evidence was required to prove force against the child victim, the evidence was sufficient to prove defendant guilty of rape when the evidence showed the 49-year old defendant lived with the victim and the victim's mother, entered the child's bedroom while the child was in bed and when no one else was home, and performed sex acts upon the child. Oates v. State, 355 Ga. App. 301, 844 S.E.2d 239 (2020).

There was sufficient evidence to support the defendant's rape convictions because each of the three victims testified that the defendant forced them to have sex against the victims' will, including testimony that the defendant held one victim down and stuffed a cell phone down the victim's throat and then raped the victim. Pauley v. State Two Cases, 355 Ga. App. 47, 842 S.E.2d 499 (2020).

Because there was other evidence of the defendant's guilt, the jury was entitled to reject the defendant's testimony as false and treat the testimony as substantive evidence of the defendant's own guilt, and the evidence was sufficient to support the jury's determination that the victim did not consent to sexual intercourse with the defendant. Davis v. State, 353 Ga. App. 651, 839 S.E.2d 184 (2020).

Victim's testimony about the burning in the victim's vagina, coupled with the testimony of the Sexual Assault Nurse Examiner that the underwear the victim had been wearing were torn in the crotch, were sufficient for a rational trier of fact to find the defendant guilty of rape beyond a reasonable doubt. Bryant v. State, 354 Ga. App. 603, 839 S.E.2d 680 (2020).

- Ten-year-old victim's testimony that on one occasion the defendant ordered the victim into the defendant's bed where the defendant had vaginal intercourse with the victim was sufficient to support the defendant's rape conviction. The jury could have inferred that the victim did not willingly consent but was intimidated into complying with the defendant's demands out of fear of punishment. Smith v. State, 319 Ga. App. 590, 737 S.E.2d 700 (2013).

Evidence was sufficient to convict the defendant of rape because the victim testified that the defendant forced the victim to have sexual intercourse with the defendant against the victim's will; the victim's testimony, standing alone, was sufficient to sustain the conviction; and testing showed that DNA found on the swabs taken from the victim as part of the sexual assault kit matched the defendant's DNA profile. Miller v. State, 325 Ga. App. 764, 754 S.E.2d 804 (2014).

- Testimony by the defendant's daughter that when the daughter was 12 the defendant put the defendant's penis in the daughter's vagina more times than the daughter could count, the daughter told the defendant "no" but the defendant would not stop, and that the defendant put the defendant's "thingy" in the daughter far enough that it hurt and moved up and down was sufficient to support the defendant's conviction for rape. Reinhard v. State, 331 Ga. App. 235, 770 S.E.2d 314 (2015).

State presented sufficient evidence to sustain the conviction for aggravated child molestation based on the victim, defendant's daughter, testifying that the defendant inserted the defendant's penis into the victim's "pants area," which, along with other evidence that the victim became pregnant by the defendant and that force was used since the victim testified that if the defendant loved the victim, the defendant would not make the victim do "things like that." Ponder v. State, 332 Ga. App. 576, 774 S.E.2d 152 (2015).

Double jeopardy did not preclude the defendant's retrial for rape because the evidence admitted at the first trial, including the victim's testimony, photographs of the victim's bruises, and the discovery of sperm on vaginal swabs taken from the victim the day following the assault, was sufficient to support the defendant's conviction for rape. Orengo v. State, 339 Ga. App. 117, 793 S.E.2d 466 (2016), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019).

Evidence, including testimony that the defendant had sexual intercourse with the victim while incapacitated, the presence of the defendant's DNA in swabs from the victim's vagina, the presence of a white residue on the glass from which the victim was drinking, and the fact that pills which could have caused the victim's symptoms were found in the defendant's apartment, was sufficient for the jury to find lack of consent required for a rape conviction. Cook v. State, 338 Ga. App. 489, 790 S.E.2d 283 (2016).

Sufficient evidence supported the defendant's convictions for aggravated assault, one count of kidnapping with bodily injury, and one count of rape based on the testimony of the two female victims that the defendant offered to drive the victims home, but then took the victims to a remote location and ordered the women to undress while the defendant brandished a knife and, after one victim escaped, the defendant drove to another remote location and forced the other woman to engage in sexual intercourse. Howard v. State, 340 Ga. App. 133, 796 S.E.2d 757 (2017).

- Evidence showing that when the defendant's niece was 11 years old the defendant forcibly inserted the defendant's penis into the niece's vagina, placed the defendant's penis on the niece's lips, and ejaculated on the niece's stomach was sufficient for a rational trier of fact to find the essential elements of rape, aggravated child molestation by act of sodomy, and incest between uncle and niece. Jones v. State, 343 Ga. App. 180, 806 S.E.2d 631 (2017), cert. denied, 2018 Ga. LEXIS 319 (Ga. 2018).

- Evidence that the victim had a barbiturate in the victim's blood in an amount sufficient to render the victim unconscious, the victim's clothes were askew, there were abrasions on the victim's face and extremities, blood from the victim was found on the hood of the car, and drag marks were found around the vehicle, and the defendant's DNA matched that from the victim's rape kit, was sufficient to support the defendant's conviction for rape. Martinez v. State, 302 Ga. 86, 805 S.E.2d 44 (2017).

- See Smith v. State, 168 Ga. App. 92, 308 S.E.2d 226 (1983); Davis v. State, 168 Ga. App. 272, 308 S.E.2d 602 (1983); Seals v. State, 176 Ga. App. 67, 335 S.E.2d 306 (1985); Williams v. State, 178 Ga. App. 80, 342 S.E.2d 18 (1986); Henry v. State, 178 Ga. App. 127, 342 S.E.2d 499 (1986); Price v. State, 179 Ga. App. 691, 347 S.E.2d 365 (1986); Davis v. State, 180 Ga. App. 190, 348 S.E.2d 730 (1986); Hall v. State, 180 Ga. App. 366, 349 S.E.2d 255 (1986); Riseden v. State, 181 Ga. App. 453, 352 S.E.2d 634 (1987); Eady v. State, 182 Ga. App. 293, 355 S.E.2d 778 (1987), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020); Slaughter v. State, 182 Ga. App. 805, 357 S.E.2d 124 (1987); Strickland v. State, 184 Ga. App. 185, 361 S.E.2d 207 (1987); McKenzie v. State, 187 Ga. App. 840, 371 S.E.2d 869, cert. denied, 187 Ga. App. 907, 371 S.E.2d 869 (1988); Lockleer v. State, 188 Ga. App. 271, 372 S.E.2d 663 (1988); Shirley v. State, 188 Ga. App. 357, 373 S.E.2d 257 (1988); Marks v. State, 192 Ga. App. 64, 383 S.E.2d 626 (1989); Spivey v. State, 193 Ga. App. 127, 386 S.E.2d 868 (1989), cert. denied, 193 Ga. App. 911, 386 S.E.2d 868 (1989); Pledger v. State, 193 Ga. App. 588, 388 S.E.2d 425 (1989); Gibbs v. State, 196 Ga. App. 140, 395 S.E.2d 387 (1990); Farmer v. State, 197 Ga. App. 267, 398 S.E.2d 235 (1990); McGee v. State, 205 Ga. App. 722, 423 S.E.2d 1993 (1992); Brown v. State, 214 Ga. App. 676, 448 S.E.2d 723 (1994); Littleton v. State, 225 Ga. App. 900, 485 S.E.2d 230 (1997); Howard v. State, 228 Ga. App. 784, 492 S.E.2d 759 (1997); Sweeney v. State, 233 Ga. App. 862, 506 S.E.2d 150 (1998); Skillern v. State, 240 Ga. App. 34, 521 S.E.2d 844 (1999); Garcia v. State, 240 Ga. App. 53, 522 S.E.2d 530 (1999); Roberts v. State, 242 Ga. App. 621, 530 S.E.2d 535 (2000); Burks v. State, 246 Ga. App. 22, 538 S.E.2d 769 (2000); Johnson v. State, 245 Ga. App. 690, 538 S.E.2d 766 (2000); Ellis v. State, 316 Ga. App. 352, 729 S.E.2d 492 (2012).

Testimony of the victim is sufficient of itself if believed and if legally adequate to sustain the conviction of rape. Perry v. State, 154 Ga. App. 385, 268 S.E.2d 747 (1980).

Rational trier of fact could have found defendant guilty beyond reasonable doubt of murder and rape. Robinson v. State, 258 Ga. 279, 368 S.E.2d 513 (1988).

- Jury was authorized to conclude from the evidence that defendant accosted the victim in the mall parking lot, forced her to accompany him to a secluded area where he raped and murdered her, then took her jewelry, her pocket book and her automobile, and used her credit cards the next day. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989).

- Medical evidence showing the presence of spermatozoa inside the victim's sex organ, and the victim's testimony that defendant "forced me to have sex with him," were sufficient to support the jury's finding of penetration in violation of O.C.G.A. § 16-6-1. Fields v. State, 216 Ga. App. 184, 453 S.E.2d 794 (1995).

- Victim's statements, corroborated by scientific evidence and the testimony of the security guard that he saw defendant on top of the victim, with his pants around his knees moving in "up and down intercourse type motions" constitutes sufficient evidence from which the jury could conclude there was vaginal penetration. Gido v. State, 216 Ga. App. 330, 454 S.E.2d 201 (1995).

- Testimony of a nurse that the vaginal injury suffered by the victim was consistent with trauma associated with nonconsensual sex was not objectionable. McDougal v. State, 239 Ga. App. 808, 521 S.E.2d 458 (1999).

Evidence consisting mostly of testimony from the victim, that the victim was awakened by defendant when the defendant broke into the victim's home, placed the defendant's hand around the victim's neck, and forced the victim to shut up or die, as the defendant threw the victim onto a couch and engaged in sexual intercourse with the victim without the victim's consent, was sufficient to uphold defendant's rape conviction, pursuant to O.C.G.A. § 16-6-1, aggravated assault conviction, pursuant to O.C.G.A. § 16-5-21, and burglary conviction, pursuant to O.C.G.A. § 16-7-1. Lowe v. State, 259 Ga. App. 674, 578 S.E.2d 284 (2003).

- Evidence was sufficient as to the essential element of penetration to support the conviction for rape because the defendant stated to officers that the incident was a rape, explained that the defendant choked the victim, and stated that the defendant had "intercourse" with the victim behind the store and described the victim putting the condom on the defendant's penis. Manning v. State, 259 Ga. App. 794, 578 S.E.2d 494 (2003).

Evidence was sufficient to support the defendant's convictions of rape, kidnapping, burglary, and aggravated assault since: (1) the victim testified that the victim discovered a strange person in the victim's den who grabbed the victim as the victim tried to run away, that the person held a knife to the side of the victim's face and said that the person would kill the victim if the victim screamed, that the person then forced the victim to go from room to room in the victim's home to turn out the lights, and that the person then raped the victim; (2) the victim identified the defendant as the victim's attacker after hearing the defendant's voice; and (3) a DNA analyst testified that, with a probability of error of one in a trillion, DNA from the defendant's blood matched the DNA found in vaginal swabs that were taken from the victim. McKinney v. State, 261 Ga. App. 218, 582 S.E.2d 463 (2003).

- Evidence was sufficient to support a rape conviction where defendant's eight year old stepchild testified that defendant "put his private in my private," that the defendant moved the defendant's body while inside the victim, that the defendant hurt the victim's "private," where the victim circled the appropriate places on anatomically correct drawings which were admitted into evidence, testified that defendant put the defendant's "private" in the victim's mouth on more than one occasion, where eventually the victim told the victim's parent, the victim's babysitter, and the victim's doctor about these events, and where a physical examination revealed redness and swelling around the victim's vagina, which, the physician testified, could have been caused by trauma. Torres v. State, 262 Ga. App. 309, 585 S.E.2d 228 (2003).

- When a 12-year-old child told the child's parent that the defendant had just raped the child; hours after the alleged rape, a detective found the defendant's checkbook in the abandoned house where the victim said the rape occurred, and a check had been written from it earlier that day; and a doctor who examined the victim within hours of the incident found abrasions and tenderness consistent with the child's description of what had occurred, the appellate court found the evidence sufficient to support the defendant's convictions of rape, statutory rape, aggravated child molestation, and child molestation. Weathersby v. State, 263 Ga. App. 341, 587 S.E.2d 836 (2003).

Evidence of the victim alone was sufficient to authorize a guilty verdict in a child molestation case; there was no requirement that the victim's testimony be corroborated, and defendant's convictions of child molestation, aggravated child molestation, rape, aggravated sexual battery, and cruelty to children were affirmed. McKinney v. State, 269 Ga. App. 12, 602 S.E.2d 904 (2004).

- When the victim, the defendant's 11-year-old stepchild, testified that the defendant penetrated the child forcibly and against the child's will, the child's testimony satisfied the elements in O.C.G.A. § 16-6-1; in addition, DNA evidence confirmed that the defendant's semen was in the victim's vagina and cervix, medical evidence showed bruising consistent with intercourse, and the evidence was sufficient to support the rape conviction. Reynolds v. State, 269 Ga. App. 268, 603 S.E.2d 779 (2004).

- Because defendant took the 16-year old female victim to the hotel where defendant was staying, and after playing video games, forced her to have sexual intercourse against her will, the victim's testimony, by itself, was sufficient to sustain the defendant's conviction under O.C.G.A. § 16-6-1(a)(1). Johnson v. State, 305 Ga. App. 853, 700 S.E.2d 735 (2010).

Evidence was sufficient to convict the defendant of rape in violation of O.C.G.A. § 16-6-1 because, without anything more, the victim's testimony was enough to permit a rational trier of fact to find beyond a reasonable doubt that the defendant committed rape; the victim testified at trial and stated that the defendant entered the victim's bedroom, held down the victim's hands as the victim tried to push the defendant away, and had sexual intercourse with the victim as the victim screamed. Roberts v. State, 313 Ga. App. 849, 723 S.E.2d 73 (2012).

- Minor victim's testimony that the sexual intercourse hurt and that the victim did not consent and was afraid of the defendant provided the evidence of force necessary to support the defendant's rape convictions. Brown v. State, 319 Ga. App. 680, 738 S.E.2d 132 (2013).

Victim's testimony that the sex was not consensual and that the victim generally agreed to the defendants' requests because they had a gun, which the defendant had previously pointed at the victim, was sufficient to support the defendant's conviction for rape. Mack v. State, 338 Ga. App. 854, 792 S.E.2d 120 (2016).

Victim's testimony alone, stating that the defendant had penetrated the victim's vagina with the defendant's finger and penis and had placed the defendant's penis in the victim's mouth despite protests, was sufficient to support the defendant's conviction for rape. Garner v. State, 346 Ga. App. 351, 816 S.E.2d 368 (2018).

- Evidence was sufficient to convict the defendant of rape and false imprisonment because venue in Fulton County was proper as the night club and the house the victim ran to after the rape were located there; the victim accepted a ride from two men who, against the victim's will, drove the victim to a nearby field and then, forcibly and against the victim's will, had sex with the victim; a sexual assault exam was performed, DNA samples were collected from the victim, and the rape kit was sent to the GBI crime lab; and, about 20 years later, the crime lab generated a profile of the male DNA which matched known DNA profiles of the defendant contained in an existing DNA database and in buccal swabs obtained from the defendant by search warrant. Walker v. State, 341 Ga. App. 742, 801 S.E.2d 621 (2017).

- Sufficient evidence, including testimony from the child victim identifying defendant's vehicle, evidence of defendant's DNA matching that of the victim and expert testimony that the frequency of such occurrence was approximately one in two billion in the Caucasian population, and similar transaction evidence, supported defendant's kidnapping with bodily injury, rape, aggravated sodomy, aggravated child molestation, aggravated assault, and first-degree cruelty to children convictions. Morita v. State, 270 Ga. App. 372, 606 S.E.2d 595 (2004).

As the victim testified that defendant entered the victim's bedroom and without the victim's consent inserted the defendant's finger and genitals into the victim, this testimony established forcible penetration; moreover, the examining sexual assault specialist concluded that the victim's wounds were consistent with the victim's story of sexual assault and indicated forced penetration by the finger and the penis; the evidence was sufficient for the jury to find the defendant guilty of rape and aggravated sexual battery, pursuant to O.C.G.A. §§ 16-6-1(a)(1) and16-6-22.2(b). Duran v. State, 274 Ga. App. 876, 619 S.E.2d 388 (2005).

Trial court's denial of defendant's motion for acquittal, pursuant to O.C.G.A. § 17-9-1, was proper, as there was sufficient evidence to support defendant's convictions for kidnapping, rape, and robbery by intimidation, in violation of O.C.G.A. §§ 16-5-40,16-6-1, and16-8-41, respectively, because the victim positively identified defendant upon the defendant's arrest and at trial, there was similar transaction evidence from another victim who was approached and threatened in the same manner, and there was also corroborative physical evidence; defendant threatened the victim, who was at a bus stop, with a gun, robbed the victim, forced the victim to a storage area in a garage, and raped the victim. Sims v. State, 275 Ga. App. 836, 621 S.E.2d 869 (2005).

Evidence was sufficient to support a rape conviction after the victim, who had been with the defendant for several hours and showed signs of a sexual assault, immediately picked the photograph of the defendant from a six photo lineup and identified the defendant in court, and where the defendant had hidden from the police. Jennings v. State, 277 Ga. App. 159, 626 S.E.2d 155 (2006).

Despite the victim's recantation of the events that occurred leading up to the rape, kidnapping, and aggravated assault committed by defendant, the evidence presented of the victim's statements and the testimony of the other state witnesses and medical personnel as to the extent of the victim's injuries was sufficient to support the convictions. Hambrick v. State, 278 Ga. App. 768, 629 S.E.2d 442 (2006).

Testimony of a single witness was sufficient to establish a fact under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), and defendant's convictions for kidnapping, burglary, aggravated sodomy, rape, and false imprisonment were supported by sufficient evidence when the victim testified that the defendant forced the victim into a train boxcar, threatened to kill the victim, and had vaginal and oral sex with the victim against the victim's will and without the victim's consent; there was also circumstantial evidence showing the victim's lack of consent, including the victim's fleeing from the boxcar while naked, the victim's outcry to a train engineer that the victim had been raped, and the victim's injuries. Davis v. State, 278 Ga. App. 628, 629 S.E.2d 537 (2006).

Sufficient evidence supported a rape conviction despite defendant's claim that the sex was consensual, where the victim, who was working on defendant's shrimp boat, testified that the defendant forced the victim to have sex with the defendant by threatening the victim with a knife. Nguyen v. State, 279 Ga. App. 129, 630 S.E.2d 636 (2006).

Sufficient evidence supported defendant's rape conviction, under O.C.G.A. § 16-6-1(a), because the jury was authorized to find, based on the victim's testimony alone, that defendant had carnal knowledge of the victim against the victim's will, and additional evidence of the victim's immediate outcry to police and medical personnel, the victim's emotional state, and medical findings made evidence of defendant's guilt overwhelming. Machuca v. State, 279 Ga. App. 231, 630 S.E.2d 828 (2006).

Defendant's convictions of rape, aggravated sodomy, false imprisonment, and two counts of aggravated assault were supported by sufficient evidence in the form of the victim's injuries, and the victim's testimony that, among other things, after the victim refused the defendant's request for sex, the defendant threw the victim on the bed, hit her in the back and on the arms with hedge clippers, ordered the victim to remove the victim's clothes, dragged the victim by the hair back into the house after the victim had escaped through a window, grabbed the victim, twisted the victim's arm, and said, "I'm trying - bitch, I'm going to kill you," hit the victim in the arm and leg with the hedge clippers, punched the victim on the lips and on the forehead, threw the victim on the bed and raped the victim and made the victim perform oral sex on the defendant. Tarver v. State, 280 Ga. App. 89, 633 S.E.2d 415 (2006).

Convictions for kidnapping, aggravated sexual battery, sexual battery, and attempted rape were all upheld on appeal, as a photo lineup was not impermissibly suggestive, similar transaction evidence was properly admitted, the defendant had notice of the evidence, and the jury was authorized to find the victim credible and to accept the victim's testimony; hence, a rational trier of fact could have found from the evidence presented that the defendant committed the charged crimes beyond a reasonable doubt. Watley v. State, 281 Ga. App. 244, 635 S.E.2d 857 (2006).

There was sufficient evidence to convict the defendant of rape under O.C.G.A. § 16-6-1; the victim testified that the defendant forcibly placed defendant's penis in the victim's vagina and made two or three painful thrusts as the victim was fighting the defendant off, and a victim's testimony, without more, was sufficient to sustain a conviction. Allen v. State, 281 Ga. App. 294, 635 S.E.2d 884 (2006).

Because sufficient evidence showed that the defendant, by posing as a police officer and driving the victims to remote locations, used fear and intimidation to ensure that the victims would cooperate and agree to have sex, the defendant was not entitled to an acquittal as to the charges of impersonating an officer, aggravated sodomy, attempted aggravated sodomy, aggravated assault and rape; furthermore, though both victims willingly got into the defendant's car, after the victims pleaded to be let go and the defendant refused to grant those pleas, the act amounted to a kidnapping. Dasher v. State, 281 Ga. App. 326, 636 S.E.2d 83 (2006).

Testimony that the victim physically resisted the defendant's sexual advances to no avail was sufficient to support the defendant's rape and aggravated sodomy convictions; moreover, because sufficient evidence was presented that the defendant was the victim's biological and/or legal father, sufficient evidence supported the defendant's incest conviction as well. Williams v. State, 284 Ga. App. 255, 643 S.E.2d 749 (2007).

Rape, incest, child molestation, aggravated child molestation, and aggravated sodomy convictions were all upheld on appeal, given that: (1) the elements of child molestation and aggravated child molestation, including venue, were supported by the female victim's testimony; and (2) the trial court's charge on the mandatory presumption of consent was proper. Forbes v. State, 284 Ga. App. 520, 644 S.E.2d 345 (2007).

It was not necessary for the state's circumstantial evidence against a defendant to exclude every conceivable hypothesis, and contrary to the defendant's assertions, the state of undress the victim was found in, coupled with DNA evidence that linked the defendant to the victim, was sufficient to support a jury's conclusion that the defendant raped and murdered the victim as opposed to having committed necrophilia or having engaged in consensual sex with the victim before the victim died. Walker v. State, 282 Ga. 406, 651 S.E.2d 12 (2007).

There was sufficient evidence to support a rape conviction; the victim's testimony that defendant threatened her life when she voiced reluctance to disrobe helped to establish her lack of consent and constituted evidence of force, and there was also medical evidence of forced intercourse. Smith v. State, 287 Ga. App. 222, 651 S.E.2d 133 (2007).

Victim's testimony and the fact that she had bruises consistent with the rape and battery she described were sufficient to support defendant's conviction for violating O.C.G.A. §§ 16-6-1(a)(1) and16-6-22.2(b); that no semen was found on the victim did not undercut the conviction, and any discrepancies between the victim's testimony and the testimony of two occupants of defendant's house, who stated that the victim was bruised before the assault, were properly resolved by the jury as the trier of fact. Duran v. Walker, F.3d (11th Cir. Mar. 29, 2007)(Unpublished).

Because the testimony of both rape victims sufficiently demonstrated that the defendant had carnal knowledge of both victims on numerous occasions, and on some of those occasions, the victims were forced and threatened to engage in sex with the defendant against their will, both rape convictions were upheld on appeal. Wightman v. State, 289 Ga. App. 225, 656 S.E.2d 563 (2008).

Victim's testimony that the defendant entered the victim's apartment without permission and forced the victim to engage in oral and vaginal intercourse against the victim's will and testimony that the victim was clearly distraught after the attack was sufficient to sustain convictions for rape and aggravated sodomy. Cross v. State, 354 Ga. App. 355, 839 S.E.2d 265 (2020).

Evidence was sufficient to convict the defendant of rape as the defendant had carnal knowledge of the victim because the victim testified that the defendant put himself inside the victim. Nguyen v. State, 351 Ga. App. 509, 831 S.E.2d 213 (2019), cert. dismissed, No. S20C0488, 2020 Ga. LEXIS 402 (Ga. 2020).

Victim's testimony as to the non-consensual and forcible nature of the victim's sexual contact with the defendant, standing alone, was sufficient to sustain the defendant's conviction of rape. Brown v. State, 293 Ga. App. 633, 667 S.E.2d 899 (2008).

Evidence was sufficient to support the defendant's conviction of rape because the child victim stated in a forensic interview that it hurt when the defendant pushed his penis partly into her vagina, that she did not want him to do that, that she told him to stop and tried to push him away, and that she was afraid to tell her mother about it because the defendant had threatened that this information would hurt her mother. This evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of forcible rape. Pendley v. State, 308 Ga. App. 821, 709 S.E.2d 18 (2011).

Evidence overwhelmingly supported the defendant's conviction for forcible rape in violation of O.C.G.A. § 16-6-1(a)(1) because the state introduced the victim's testimony, the testimony of eyewitnesses to the act, the examining physician's testimony, and photographic evidence. Strozier v. State, 314 Ga. App. 432, 724 S.E.2d 446 (2012).

Evidence was sufficient to support the defendant's convictions for rape, O.C.G.A. § 16-6-1(a)(1), statutory rape, O.C.G.A. § 16-6-3(a), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), aggravated sodomy, O.C.G.A. § 16-6-2(a)(2), child molestation, O.C.G.A. § 16-6-4(a)(1), and aggravated child molestation, O.C.G.A. § 16-6-4(c), because the evidence not only included the victims' testimony, which was both direct evidence of the victims' own molestation and similar transaction evidence of the other's abuse, but also included the testimony of outcry witnesses and recordings of the forensic interviews of both victims. Williamson v. State, 315 Ga. App. 421, 727 S.E.2d 211 (2012).

State of Georgia presented sufficient evidence of forcible rape when: (1) the minor victim testified that the defendant engaged in intercourse with the victim in various positions, that it hurt, and that the victim did not consent; (2) a sexual assault nurse examiner (SANE) testified as to the victim's disclosure that it stung when the defendant put the defendant's penis in the victim's vagina and that it bled on one occasion; and (3) the SANE testified regarding (and the jury viewed photographic evidence of) a laceration to the victim's posterior fourchette, which the SANE testified was consistent with sexual intercourse as alleged by the victim. Jordan v. State, 317 Ga. App. 160, 730 S.E.2d 723 (2012).

Evidence which included DNA evidence, the victim's testimony regarding the nature of the attack and description of the attacker, and the store surveillance video of an individual who wore clothing similar to that worn by the attacker and who appeared to be the same race as the attacker supported the defendant's convictions for rape, kidnapping, armed robbery, theft by taking, and three counts of possession of a gun during the commission of a crime. Glaze v. State, 317 Ga. App. 679, 732 S.E.2d 771 (2012).

Defendant's rape conviction was supported by the investigator's testimony that the victim told the investigator that the defendant inserted the defendant's penis into the victim's vagina. Gordon v. State, 327 Ga. App. 774, 761 S.E.2d 169 (2014).

- While the victim initially identified someone else as the assailant, evidence that that defendant's DNA matched the seminal fluid found on the victim's clothing, the defendant was seen near the house shortly after the rape, and the defendant's shirt was found in the residence supported the defendant's convictions for rape, child molestation, false imprisonment, and burglary. Couch v. State, 326 Ga. App. 207, 756 S.E.2d 291 (2014).

Evidence was sufficient to convict the defendant of rape, aggravated sodomy, and two counts of armed robbery because the co-defendant, the defendant, and a third man rushed into the apartment and secured the arms and legs of the male victims with duct tape while they ransacked the apartment looking for money and drugs; as the victim entered the bathroom and sat on the toilet, the defendant followed the victim in, stood in front of the victim, and forced the victim at gunpoint to perform oral sex on the defendant; the defendant later bent the victim over a sofa, and had sexual intercourse with the victim; and the victim identified the defendant as the man who sexually assaulted the victim. Traylor v. State, 332 Ga. App. 441, 773 S.E.2d 403 (2015).

Evidence was sufficient to convict the defendant of two counts of rape because the victim testified that the defendant forced the victim to have sex with the defendant against the victim's will and under threat of harm to the victim's mother on at least two occasions. Hunt v. State, 336 Ga. App. 821, 783 S.E.2d 456 (2016).

Evidence was sufficient to convict the defendant of aggravated child molestation, rape, incest, and two counts of sexual battery because the defendant, the victim's father, began touching the victim's breasts and genital area when the victim was 14 years old; the defendant's actions escalated to vaginal intercourse after the victim turned 15; the victim told the defendant the intercourse was painful, but the defendant persisted; the victim testified that the victim did not desire or consent to the sexual activity with the defendant; and the victim's testimony was corroborated by the medical evidence that the victim's genital area appeared abnormal in ways consistent with the victim's account. Tinson v. State, 337 Ga. App. 83, 785 S.E.2d 914 (2016).

Evidence was sufficient to convict the defendant of rape and child molestation because the defendant lived in a home with various relatives, including the victim, the defendant's 10-year-old cousin; one night, the victim awoke to find the defendant rubbing the victim's vagina with the defendant's hand; a few nights later, the victim awoke to find the defendant penetrating the victim's vagina with the defendant's penis; the penetration occurred against the victim's will; and, after the victim's 2009 outcry, some of the victim's relatives confronted the defendant with the victim's allegations and a journal entry stating that the defendant had sexual intercourse with the victim while the victim was in bed asleep. Jones v. State, 340 Ga. App. 568, 798 S.E.2d 87 (2017).

- Evidence, including the defendant's confession to having intercourse with the victim after the defendant's confederates had beaten and raped the victim, authorized the jury to conclude that the defendant had sexual intercourse with the victim forcibly and against the victim's will and was therefore guilty of rape. Morales v. State, 337 Ga. App. 614, 788 S.E.2d 535 (2016).

- Evidence supported the defendant's convictions of burglary, kidnapping with bodily injury, rape, aggravated assault, robbery, and theft by taking when a treating physician stated that the 86-year-old victim's injuries, including blood inside her vagina and bruises and contusions on her vagina, were consistent with forcible penetration; when the defendant admitted entering the victim's home, removing her clothing, restraining her with electrical cords, hitting her, putting a plastic bag over her head, forcing her from one room to another, and taking her money and her car; and when DNA from the defendant matched the DNA of two hair roots found on the victim's living room floor. Smith v. State, 291 Ga. App. 545, 662 S.E.2d 323 (2008).

Evidence supported the defendant's convictions of rape under O.C.G.A. § 16-6-1(a)(2), aggravated sexual battery under O.C.G.A. § 16-6-22.2, and two counts of child molestation under O.C.G.A. § 16-6-4(a) with regard to his daughter, who was seven at the time. The victim testified that the defendant touched her vagina with his hand and insisted that she touch his penis with her hand; a detective testified that the victim told him that the defendant touched her on her vagina with his hands, fingers, and penis and that he asked her to touch his penis; another detective, who conducted a videotaped interview with the victim, testified that the victim told her that she had sex with the defendant on multiple occasions; in the interview, the victim stated that the defendant pulled her pants down and put his penis inside her vagina and that he put his hand inside her vagina; and the victim's mother and grandmother testified to similar statements by the victim. Osborne v. State, 291 Ga. App. 711, 662 S.E.2d 792 (2008), cert. denied, No. S08C1643, 2008 Ga. LEXIS 783 (Ga. 2008), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

Testimony by a victim that the defendant and an accomplice, armed with handguns, forcibly entered the victim's apartment, raped and sodomized the victim, struck the victim with a gun, stole jewelry, bound the victim, and escaped in a car owned by the victim's prospective spouse, and evidence that 24 fingerprints lifted from the apartment and car matched the defendant's, was sufficient to convict the defendant of rape. Crawford v. State, 292 Ga. App. 463, 664 S.E.2d 820 (2008).

Evidence supported a defendant's conviction for malice murder and rape. The victim had seminal fluid on her leg and buttocks and in her vagina, a massive wound in the back of the head caused by at least five individual blows that had driven pieces of her skull into her brain, and ligature marks on her neck; the defendant told a co-worker that he had hit a woman on the back of the head; DNA obtained from the defendant matched that found on the victim; and the defendant told a detective that he had killed the victim. Holmes v. State, 284 Ga. 330, 667 S.E.2d 71 (2008).

- Trial court did not err in admitting the victim's testimony about the victim's sexual activity in the few days around the alleged rape because the evidence was relevant to exclude the possibility that the sperm found on swabs of the victim's vagina the day after the rape belonged to someone other than the defendant; and because the Rape Shield Statute, O.C.G.A. § 24-4-412, could not be invoked by the defendant to prevent a victim from offering otherwise relevant evidence. Orengo v. State, 339 Ga. App. 117, 793 S.E.2d 466 (2016), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019).

- A 27-year-old mentally retarded person testified of being raped by the defendant after he entered the victim's apartment; this testimony was corroborated by eyewitnesses who saw the defendant with the victim, blood at the scene, and wounds to the victim's genitals. Coupled with the defendant's prior offenses for taking indecent liberties with minors, and the defendant's eventual admissions after initially claiming to barely know the victim, the evidence was sufficient to convict the defendant of rape. Kent v. State, 294 Ga. App. 134, 668 S.E.2d 442 (2008).

- There was no merit to the defendant's argument that the evidence was insufficient to sustain the defendant's rape conviction because there was no physical evidence, such as lacerations, scratching, bruising, or other injuries, to show that the sex the defendant had with the victim was nonconsensual. The victim testified as to the nonconsensual and forcible nature of the victim's contact with the defendant, and that testimony, standing alone, was sufficient to sustain the conviction. Brown v. State, 293 Ga. App. 564, 667 S.E.2d 410 (2008).

- There was sufficient evidence to support a defendant's convictions for rape, incest, statutory rape, and child molestation against one of the defendant's children and a stepchild based on the defendant's repeated engagement in sexual intercourse with the children at various times while one was 12 to 16 years old and the other was 16 to 19 years old, and evidence of a letter threatening suicide on the defendant's part and apologizing for the actions against the children was also introduced against the defendant. However, the conviction on the charge of aggravated sexual battery against the stepchild was in error and required reversal since the state failed to introduce direct or circumstantial evidence sufficient to prove beyond a reasonable doubt that the defendant violated O.C.G.A. § 16-6-22.2 by penetrating that child's sexual organ with a replica penis. Connelly v. State, 295 Ga. App. 765, 673 S.E.2d 274 (2009), cert. denied, No. S09C0892, 2009 Ga. LEXIS 260 (Ga. 2009).

Following evidence was sufficient to convict the defendant of kidnapping with bodily injury, aggravated sodomy, rape, and robbery by intimidation: 1) the victim's testimony of being repeatedly raped by the defendant at knife point, forced to perform oral sex, beaten, robbed, and threatened with death; 2) a nurse's testimony that the victim was crying, rocking back and forth, and had bruised cheeks; and 3) evidence that the defendant's DNA matched sperm cell DNA found on the victim's body. Sanders v. State, 297 Ga. App. 897, 678 S.E.2d 579 (2009).

Sufficient evidence supported the defendant's convictions of armed robbery, O.C.G.A. § 16-8-41(a), rape, O.C.G.A. § 16-6-1(a)(1), aggravated assault, O.C.G.A. § 16-5-21(a)(2), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), kidnapping, O.C.G.A. § 16-5-40(a), and aggravated sodomy, O.C.G.A. § 16-6-2(a)(2) involving four different victims on three separate dates; both the husband and the wife, the victims in the first criminal incident, identified the defendant in court as the perpetrator of the crimes. Two separate DNA analyses testified to by two forensic biologists showed that the defendant's sperm was present in the vaginas of the other two female victims. Robins v. State, 298 Ga. App. 70, 679 S.E.2d 92 (2009).

There was sufficient evidence to support a defendant's convictions for rape, aggravated sodomy, kidnapping, burglary, and misdemeanor sexual battery based on the similar transaction evidence produced by the state, the fact that the defendant's DNA was found in the victims' beds, and that the defendant's identity was established, all of which sufficiently linked the defendant to the crimes beyond a reasonable doubt. Goolsby v. State, 299 Ga. App. 330, 682 S.E.2d 671 (2009).

- In the defendant's trial for rape of a mentally disabled relative under O.C.G.A. § 16-6-1(a)(1), given the defendant's cross-examinations suggesting that relatives and state officials had influenced the victim's trial testimony after an interview of the victim occurred, the trial court appropriately admitted the prior consistent statement to rebut the implied charge of recent undue influence under O.C.G.A. § 24-6-613(c). Ray v. State, 345 Ga. App. 522, 812 S.E.2d 97 (2018), overruled on other grounds by State v. Burns, 306 Ga. 117, 829 S.E.2d 367 (2019).

- Evidence supported defendant's rape, aggravated sodomy, aggravated assault, criminal trespass, misdemeanor obstruction of a law enforcement officer, felony obstruction of a law enforcement officer, and possession of marijuana conviction because: (1) a victim testified that defendant choked the victim, slammed the victim around a room, and raped and sodomized the victim, then drank a beer, took the victim's BC powder packets, and a cell phone, and left; (2) defendant fled from the police, kicked two officers, and had marijuana, BC packets, and a cell phone on the defendant's person; (3) defendant's DNA matched the DNA on the beer can; (4) a nurse testified that the victim's bruise was consistent with strangulation; and (5) a doctor testified that the victim's injuries were consistent with rape and sodomy. Lewis v. State, 271 Ga. App. 744, 611 S.E.2d 80 (2005).

Evidence was sufficient to support defendant's rape conviction because it showed that defendant carried the defendant's child from the child's bed to the bed defendant shared with the defendant's spouse and watched the defendant's spouse lay on top of the child, squeezing the child's stomach and rendering the child unable to cry out even when the spouse hurt the child by placing the spouse's genitals in the child's genitals. Spivey v. State, 272 Ga. App. 224, 612 S.E.2d 65 (2005).

Evidence supported defendant's conviction for rape because the victim testified that defendant held the victim down on a bed, with the defendant's elbow across the victim's throat, and forced the victim to have intercourse with the defendant while the victim pleaded with the defendant to stop; further, a witness saw defendant on top of the protesting victim. Stevenson v. State, 272 Ga. App. 335, 612 S.E.2d 521 (2005).

Evidence supported defendant's conviction for rape and sexual battery as the victim testified that the victim was raped by a person who entered the victim's home while a friend was visiting and the friend identified defendant as the person who entered the home when the friend was visiting. Powell v. State, 272 Ga. App. 628, 612 S.E.2d 916 (2005).

Because the victim's statement of sexual abuse was sufficient under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) to convict the defendant of kidnapping with bodily injury, aggravated child molestation, rape, aggravated sodomy, aggravated assault, and possession of a knife during the commission of a crime, the victim's testimony did not have to be corroborated by physical evidence. Gartrell v. State, 272 Ga. App. 726, 613 S.E.2d 226 (2005).

In defendant's prosecution for rape, kidnapping with bodily injury, and burglary, the evidence was sufficient to show that defendant was the perpetrator of the offenses because the evidence showed the assailant to be a young, African-American person driving a white automobile with certain plates, and defendant admitted that the defendant had been driving a stolen white automobile prior to the date that the crimes occurred; this evidence coupled with DNA evidence showing DNA of both defendant and the victim in stains left on the bedding in the victim's apartment where the rape occurred was sufficient to enable any rational trier of fact to determine beyond a reasonable doubt that defendant was the perpetrator of the crimes of which he was found guilty. Winkfield v. State, 275 Ga. App. 456, 620 S.E.2d 670 (2005).

Despite a juvenile's challenge to the sufficiency of the evidence, an adjudication entered by the juvenile court on a charge of attempted rape was proper because the adjudication was supported not only by the testimony of the victim, but also by the corroborating testimony offered by both the victim's neighbor, who witnessed the attack, and the victim's sister, who chased the juvenile away from the scene. In the Interest of J.L.H., 289 Ga. App. 30, 656 S.E.2d 160 (2007).

Evidence was sufficient to convict a defendant of rape as the testimony of the defendant's accomplice that the defendant raped the victim was corroborated by the victim's out-of-court and in-court identification of the defendant as the rapist and the fact that the defendant's DNA was found on the victim's clothing. Williams v. State, 295 Ga. App. 9, 670 S.E.2d 828 (2008).

- Witnesses testified pursuant to O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) that the defendant's stepchild, then 12, told the witnesses about being repeatedly raped and molested by the defendant. That the stepchild recanted these statements at trial did not render the hearsay inadmissible under former § 24-3-16, and as the stepchild's credibility was for the jury to decide, the evidence was sufficient to support the defendant's convictions for rape, incest, and child molestation. Harvey v. State, 295 Ga. App. 458, 671 S.E.2d 924 (2009).

- See Clark v. State, 186 Ga. App. 882, 369 S.E.2d 282 (1988).

- See Lumsden v. State, 222 Ga. App. 635, 475 S.E.2d 681 (1996); Hollis v. State, 225 Ga. App. 370, 484 S.E.2d 54 (1997).

Evidence was sufficient to support the defendant's conviction for attempted rape in violation of O.C.G.A. §§ 16-4-1 and16-6-1(a)(1) because the victim's testimony as to the defendant forcing his penis into her vagina against her will sufficed to sustain the attempted rape conviction. Gomez-Oliva v. State, 312 Ga. App. 105, 717 S.E.2d 689 (2011), overruled in part by Southall v. State, 300 Ga. 462, 796 S.E.2d 261 (2017).

Evidence was sufficient to convict the defendant of criminal attempt to commit rape because the victim testified that the defendant broke into the victim's hotel room; the defendant took one or more substantial steps towards committing that crime as the defendant placed the defendant's fingers inside the victim's vagina and removed the defendant's pants before being interrupted by a knock at the door; and the officer who interrupted the crime testified that the officer observed the defendant's pants were undone when the defendant came to the door and that the victim was naked behind the defendant and mouthed the words "help me." Smith v. State, 348 Ga. App. 643, 824 S.E.2d 382 (2019).

Evidence sufficient for conviction of rape and possession of firearm during commission of felony. Clemmons v. State, 210 Ga. App. 632, 437 S.E.2d 350 (1993).

- See Woodford v. State, 240 Ga. App. 875, 525 S.E.2d 408 (1999).

- See Clark v. State, 249 Ga. App. 97, 547 S.E.2d 734 (2001).

- See Davis v. State, 292 Ga. App. 782, 666 S.E.2d 56 (2008).

- There was sufficient evidence to support the finding that defendant aided and abetted, pursuant to O.C.G.A. § 16-2-20(b), the father's rape of the daughter in violation of O.C.G.A. § 16-6-1(a)(1); defendant told the daughter to take the daughter's clothes off and was present when the father had sex with the daughter. Zepp v. State, 276 Ga. App. 466, 623 S.E.2d 569 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

- Defendant was properly convicted of being a party to rape under O.C.G.A. §§ 16-2-20 and16-6-1(a)(1), because evidence that the defendant knew that the defendant's 11-year-old child was being raped, told the child to lie to investigators, failed to prevent the rapist from having contact with the child, helped the rapist get out of jail, and allowed the rapist to move in with the defendant and the child showed that the defendant affirmatively encouraged and was a party to the rapes. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).

- Trial court's order dismissing an indictment charging the defendant with rape, incest, aggravated child molestation, and child molestation on grounds that the state improperly failed to preserve lab samples taken from the victim was reversed because the defendant failed to show that the failure was the result of bad faith on the part of the state or the police, and the value of the sample to the defendant was only potentially exculpatory. State v. Brady, 287 Ga. App. 626, 653 S.E.2d 72 (2007).

- When the defendant was convicted of rape, aggravated child molestation, and enticing a child for indecent purposes, because the preservation of evidence statute applies to physical evidence containing biological material that could identify the perpetrator and is collected at the time of the crime, the statute did not apply to the biological material collected at the victim's abortion more than two months after the crime occurred; and it did not apply to the sample collected from the victim's abortion because the sample was contaminated due to the storage procedure used by the medical clinic, not the state, and there was no usable biological material that would relate to the identity of the perpetrator. Davis v. State, 329 Ga. App. 797, 764 S.E.2d 588 (2014).

- Since the evidence showed that, upon discovering the victim was menstruating, the defendant apparently found the accomplishment of the crime of rape to be more difficult, the defendant was not found to have abandoned the criminal enterprise, choosing instead to force the victim to perform fellatio; therefore, sufficient evidence existed to support the defendant's conviction for attempted rape, since under the circumstances it cannot be said that the defendant made a complete renunciation of the criminal purpose. Allen v. State, 286 Ga. App. 82, 648 S.E.2d 677 (2007).

- With regard to a defendant's convictions for false imprisonment, rape, and aggravated child molestation arising from allegations that the defendant sexually molested a 9-year-old relative, the defendant failed to meet the burden of establishing that the defendant received ineffective assistance of counsel as to trial counsel's alleged failure to proffer the defendant's anticipated testimony regarding the victim's alleged sexual behavior as the term "hot" as used by the defendant regarding the victim was explained by the officer who interviewed the defendant as meaning that the defendant believed that the victim was sexually active with another, thus, the jury was made aware of what the defendant meant by the term, as opposed to being left with the mistaken impression that the defendant found the victim sexually attractive. Furlow v. State, 297 Ga. App. 375, 677 S.E.2d 412 (2009).

- In a rape and aggravated sodomy case, the trial court properly rejected the defendant's claim that trial counsel was ineffective for not introducing evidence on the adult victim's mental capacity to consent. Because the defendant failed to proffer the testimony of an uncalled witness, the defendant could not prove that there was a reasonable probability that the trial would have ended differently; furthermore, counsel gave a reasonable explanation for not introducing expert testimony in that counsel believed that the victim might have the capacity to consent and that counsel believed that expert testimony on the issue would not sway the jury. Ravon v. State, 297 Ga. App. 643, 678 S.E.2d 107 (2009).

- In a rape case, the trial court did not err in admitting the testimony of the expert therapist trained in sexual victimization as the expert's testimony did not constitute improper bolstering evidence because the expert testified based on the expert's experience interviewing and counseling victims of sexual assault as to a victim's demeanor after an assault and possible disclosure delays; the admission of expert testimony regarding the post-event conduct of rape victims, including disclosure delay, had been previously affirmed; and the defendant was allowed to argue at trial that the victim's behavior after the alleged rape, including the victim's delay in reporting it, supported the conclusion that the victim fabricated the allegations. Orengo v. State, 339 Ga. App. 117, 793 S.E.2d 466 (2016), overruled on other grounds, White v. State, 305 Ga. 111, 823 S.E.2d 794, 2019 Ga. LEXIS 66 (2019).

- Evidence was sufficient to convict the defendant of the rape and murder of a victim found next to a truck parked at a tire store because the defendant, who was homeless, lived and slept in the truck and had slept there the night before, DNA evidence confirmed the defendant had sex with the victim within 48 hours of the victim's death, and the defendant had raped other women in motor vehicles, including the truck at the tire store. Willis v. State, 304 Ga. 122, 816 S.E.2d 656 (2018).

Sentence

Illegal sentence.

- Defendant's conviction for life with 25 years in confinement was void because the sentence was not statutorily permitted. Upton v. State, 350 Ga. App. 535, 829 S.E.2d 791 (2019).

- When three charges of rape against a defendant differed from one another only with respect to the averment of date, in none of the three was the date made an essential element, and all the dates alleged fell within the period of the statute of limitation, only one sentence for the three charges and convictions could be imposed. LaPan v. State, 167 Ga. App. 250, 305 S.E.2d 858 (1983).

Sentences for both aggravated assault and rape did not violate double jeopardy, since even if defendant had departed from the victim's apartment prior to the forcible sexual penetration of her, he still would have been guilty of the aggravated assault of the victim because he had pointed a pistol at her through the window and held the pistol while he led her from room to room before the rape. Taylor v. State, 177 Ga. App. 624, 340 S.E.2d 263 (1986).

- Fairness of a defendant's sentence of life imprisonment for being a party to rape was not examined because, contrary to the defendant's claims, the plain terms of O.C.G.A. § 17-10-6.1(a)(5) did not prohibit the defendant from applying for scrutiny of the sentence by the Georgia Sentence Review Panel; as the defendant conceded, the sentence fell within the statutory limits under O.C.G.A. §§ 16-2-21 and16-6-1, and as a rule, sentences that fell within such limits were not reviewed for legal error. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).

- O.C.G.A. § 17-10-6.1(a) defined both rape and aggravated sodomy as "serious violent felonies;" thus, in light of a prior aggravated sodomy conviction, a trial court would have been required to sentence the defendant to life without parole for subsequent violent rape felonies under the sentencing statutes either as they existed at the time of the rapes, 1996, or at the time of the defendant's trial, 1998. Thompson v. State, 279 Ga. App. 657, 632 S.E.2d 407 (2006).

When a defendant pled guilty to rape, and the state did not seek the death penalty, it was error to impose a sentence of life without parole under O.C.G.A. § 16-6-1(b); under case law and O.C.G.A. § 17-10-16(a), a life sentence without parole was authorized only in cases when the state first sought the death penalty. Velazquez v. State, 283 Ga. App. 863, 643 S.E.2d 291 (2007), aff'd, 238 Ga. 206, 657 S.E.2d 838 (2008).

Trial court correctly sentenced a defendant to serve life without the possibility of parole because the defendant was a four-time recidivist and the maximum sentence for rape was life in prison. Further, the state provided the defendant with notice prior to trial that the state would seek to have the defendant sentenced as a recidivist, pursuant O.C.G.A. § 17-10-7. Hall v. State, 292 Ga. App. 544, 664 S.E.2d 882, cert. denied, No. S08C1841, 2008 Ga. LEXIS 926 (Ga. 2008).

- In a criminal trial on charges that the defendant allowed the repeated rapes of the defendant's 11-year-old child, the rule of lenity did not require that the defendant's felony convictions for being a party to rape and cruelty to children should be subsumed by the misdemeanor conviction for contributing to the deprivation of children because different facts were necessary to prove the offenses; the rape conviction required proof under O.C.G.A. §§ 16-2-20 and16-6-1(a)(1) that the defendant took affirmative steps to aid the rapist, the cruelty to children conviction required proof under O.C.G.A. § 16-5-70(b) that the defendant caused excessive mental pain to the child, and the conviction for contributing to the deprivation of a minor required proof under O.C.G.A. §§ 15-11-2(8)(A) and16-12-1(b)(3) that the defendant failed to provide the child with proper care necessary for the child's health, which the state proved by showing that the defendant failed to seek prenatal care for the child even though the defendant knew that the child was pregnant. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).

- Defendant's sentence on a rape count for which the defendant was acquitted was vacated and the case was remanded for the defendant to be sentenced on a rape count for which the defendant was convicted as it was error to sentence the defendant for the rape for which the defendant was acquitted. Smith v. State, 282 Ga. App. 339, 638 S.E.2d 791 (2006).

Upon certiorari review before the Supreme Court of Georgia, the Court of Appeals of Georgia properly vacated a rape sentence entered by the trial court, holding that the defendant was incorrectly sentenced to a term of life in prison without the possibility of parole, as the state failed to give notice that the state intended to seek the death penalty, and the trial court failed to find that any aggravating circumstance under O.C.G.A. § 17-10-30 existed, pursuant to former O.C.G.A. § 17-10-32.1; thus, the trial court was not authorized to sentence the defendant to life in prison without the possibility of parole. State v. Velazquez, 283 Ga. 206, 657 S.E.2d 838 (2008).

- Rape conviction was upheld on appeal as the defendant was not entitled to a new trial based on defense counsel's failure to object to certain testimony from the victim about the defendant's history of selling drugs and failure to subpoena certain medical records; moreover, the defendant was properly denied a mistrial as the trial court issued a curative instruction regarding the alleged improper character evidence admitted, and thereafter polled the jury to ensure that jurors would in fact disregard that evidence. Mitchell v. State, 287 Ga. App. 517, 651 S.E.2d 821 (2007).

Defendant's ineffective assistance of counsel claim did not warrant a new trial in a prosecution for rape, kidnapping, aggravated stalking, and two counts of stalking; because of the limited nature of a challenged witnesses' trial testimony, defense counsel made a strategic decision not to seek recusal of the trial judge, who was the brother of the challenged witness, and counsel discussed with the defendant the reasons for not seeking recusal. Pirkle v. State, 289 Ga. App. 450, 657 S.E.2d 560 (2008).

Appellate court is without authority to review sentences within statutory range. Covington v. State, 157 Ga. App. 371, 277 S.E.2d 744 (1981).

§ 16-6-1(b) a specific statute that prevailed over general sentencing statute. - O.C.G.A. § 16-6-1(b) was a specific statute authorizing sentences for rape and therefore prevailed over the general sentencing statute, O.C.G.A. § 17-10-1. Burke v. State, 274 Ga. App. 402, 618 S.E.2d 36 (2005).

Punishment of death does not invariably violate the Constitution. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

- Before a convicted defendant may be sentenced to death, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in former Code 1933, § 27-2534.1 (see now O.C.G.A. § 17-10-30). Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Sentence of death is grossly disproportionate and excessive punishment for rape and is therefore forbidden by U.S. Const., amend. 8 as cruel and unusual punishment. Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977).

Death penalty for rape is not unconstitutional where victim is killed. Moore v. State, 240 Ga. 807, 243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S. Ct. 268, 58 L. Ed. 2d 249 (1978).

When death to victim does not result, death penalty for rape must be set aside. Boyer v. State, 240 Ga. 170, 240 S.E.2d 68 (1977).

- While the death penalty could not be constitutionally imposed for a rape conviction when the victim did not die, rape was still a capital offense, for purposes of the speedy trial statutes, O.C.G.A. §§ 17-7-170 and17-7-171, because a determination that the death penalty could not be imposed did not affect the legislature's decision that rape was a crime for which the state should be allowed additional time to prepare its case, so, under O.C.G.A. § 17-7-171(b), the state had until the end of the third term of court following the term in which a speedy trial demand was made to try such a case. Merrow v. State, 268 Ga. App. 47, 601 S.E.2d 428 (2004).

- Trial court properly denied defendant's motion autrefois convict in a rape case under O.C.G.A § 16-6-1; defendant did not substantially comply with the O.C.G.A § 17-7-170 requirements for filing a speedy trial demand on sexual battery charges that were pending before the instant rape charge was filed, because defendant failed to file the demand on the trial judge, no speedy trial demand was made. Baker v. State, 270 Ga. App. 762, 608 S.E.2d 38 (2004).

The 1996 amendment repealed the ten year mandatory minimum sentence for rape and aggravated sodomy formerly applicable to first offenders. 1996 Op. Att'y Gen. No. U96-20.

RESEARCH REFERENCES

Am. Jur. 2d.

- 65 Am. Jur. 2d, Rape, § 1 et seq.

Handling the Defense in a Rape Prosecution, 18 Am. Jur. Trials 341.

- 75 C.J.S., Rape, § 1 et seq.

- Subsequent marriage as bar to prosecution for rape, 9 A.L.R. 339.

Civil liability for carnal knowledge with actual consent of girl under age of consent, 79 A.L.R. 1229.

Assault with intent to ravish or rape consenting female under age of consent, 81 A.L.R. 599.

Rape as bailable offense, 118 A.L.R. 1115.

Former acquittal or conviction under indictment or other information for rape or other sexual offense which does not allege that female was under age of consent as bar to subsequent prosecution under indictment or information which alleges that she was under age of consent; and vice versa, 119 A.L.R. 1205.

Admissibility, in prosecution for sexual offense, of evidence of other similar offenses, 167 A.L.R. 565; 77 A.L.R.2d 841.

Admissibility and propriety, in rape prosecution, of evidence that accused is married, had children, and the like, 62 A.L.R.2d 1067.

Admissibility, in nonstatutory rape prosecution, of evidence of pregnancy of prosecutrix, 62 A.L.R.2d 1083.

Incest as included within charge of rape, 76 A.L.R.2d 484.

Rape by fraud or impersonation, 91 A.L.R.2d 591.

Impotency as defense to charge of rape, attempt to rape, or assault with intent to commit rape, 23 A.L.R.3d 1351.

Rape or similar offense based on intercourse with woman who is allegedly mentally deficient, 31 A.L.R.3d 1227.

Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.

Racial discrimination in punishment for crime, 40 A.L.R.3d 227.

What constitutes penetration in prosecution for rape or statutory rape, 76 A.L.R.3d 163.

Multiple instances of forcible intercourse involving same defendant and same victim as constituting multiple crimes of rape, 81 A.L.R.3d 1228.

What constitutes offense of "sexual battery,", 87 A.L.R.3d 1250.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 A.L.R.3d 257.

Constitutionality of rape laws limited to protection of females only, 99 A.L.R.3d 129.

Criminal responsibility for physical measures undertaken in connection with treatment of mentally disordered patient, 99 A.L.R.3d 854.

Venue in rape cases where crime is committed partly in one place and partly in another, 100 A.L.R.3d 1174.

Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix, 2 A.L.R.4th 330.

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 A.L.R.4th 1009.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 A.L.R.4th 105.

Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome, 42 A.L.R.4th 879.

Conviction of rape or related sexual offenses on basis of intercourse accomplished under the pretext of, or in the course of, medical treatment, 65 A.L.R.4th 1064.

Prosecution of female as principal for rape, 67 A.L.R.4th 1127.

Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape, 76 A.L.R.4th 1147.

Propriety of publishing identity of sexual assault victim, 40 A.L.R.5th 787.

Validity, construction, and application of state statutes authorizing community notification of release of convicted sex offender, 78 A.L.R.5th 489.

Admissibility of expert testimony as to proper techniques for interviewing children or evaluating techniques employed in particular case, 87 A.L.R.5th 693.

Defense of mistake of fact as to victim's consent in rape prosecution, 102 A.L.R.5th 447.

Offense of rape after withdrawal of consent, 33 A.L.R.6th 353.

Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 103 A.L.R.6th 507.

Admissibility of suicide note in criminal proceedings, 13 A.L.R.7th 6.

Construction and application of "crime of violence" provision of U.S.S.G. § 2L1.2 pertaining to unlawfully entering or remaining in the United States after commission of felony offense, 68 A.L.R. Fed. 2d 55.

Construction and application of 18 U.S.C.A. § 2242(2), proscribing sexual abuse of person incapable of appraising nature of conduct, declining participation, or communicating unwillingness to participate in sexual act, 83 A.L.R. Fed. 2d 1.