Sylvester v. State , 168 Ga. App. 718 ( 1983 )

168 Ga. App. 718 (1983) 310 S.E.2d 284

SYLVESTER
v.
THE STATE.

67260.

Court of Appeals of Georgia.

Decided November 2, 1983.

Harry J. Fox, Jr., for appellant.

G. Theron Finlayson, District Attorney, for appellee.

BANKE, Judge.

The defendant was convicted of rape, aggravated assault, and theft by taking. On appeal, he contends that the jury's verdict is not supported by the evidence and that the trial court erred in entering convictions for both aggravated assault and rape because the assault was a lesser included offense as a matter of fact. Held:

1. The evidence was sufficient to enable a rational trier of fact to find the defendant guilty of all three offenses beyond a reasonable doubt. Crawford v. State, 245 Ga. 89 (263 SE2d 131) (1980); Brown v. State, 164 Ga. App. 505 (296 SE2d 215) (1982).

2. The aggravated assault indictment charged that the defendant "made an assault [upon the victim] with a knife . . . threatening to kill her." The defendant argues that the evidence used to support this charge was also used to prove the force or intimidation element of the rape charge and consequently that the two charges were based on the same conduct. See generally OCGA § 16-1-6 (Code Ann. § 26-505); State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974). However, there was evidence that more than one assault took place prior to and during the rape, and the jury was authorized to conclude that at least one of these was gratuitous and unconnected with the rape offense. See Coaxum v. State, 146 Ga. App. 370 (3) (246 SE2d 403) (1978).

Judgment affirmed. Deen, P. J., and Carley, J., concur.