Mack v. the State , 338 Ga. App. 854 ( 2016 )

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 12, 2016
In the Court of Appeals of Georgia
A16A0966. MACK v. THE STATE.
PETERSON, Judge.
Chandler Mack appeals from the denial of his motion for new trial following
his convictions for rape, armed robbery, aggravated assault, and possession of a
firearm during the commission of a felony. Mack argues that the evidence was
insufficient to sustain his convictions for rape and aggravated assault, and that the
trial court erred in failing to instruct the jury on the crime of pointing a firearm as a
lesser-included offense of aggravated assault. We affirm Mack’s convictions in part
because the evidence was sufficient to support his rape conviction. Because Mack’s
conviction for aggravated assault should have merged with his armed robbery
conviction, we vacate his aggravated assault conviction and his sentence and remand
the case to the trial court for resentencing, which moots his challenges to his
aggravated assault conviction.
“On appeal, the evidence must be viewed in the light most favorable to support
the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver
v. State, 230 Ga. App. 224, 224 (496 SE2d 292) (1998) (citation omitted). So viewed,
the evidence shows that the victim, who said she worked part-time as a paid
“companion for older lonely gentlemen,” went to a DeKalb County apartment
complex after receiving a midnight phone call soliciting her services. Mack met the
victim in the parking lot, took her into an apartment, and led her to the bedroom.
Mack talked to co-defendant Anthony Celestine while the victim sat on the bed in the
bedroom. Mack entered the bedroom, leaned over the bed, pulled out a gun, and
directed the victim’s attention to the gun while it was pointed at her.
Upon seeing the gun, the victim put her hands in the air and said, “You can
have it all. I don’t have nothing.” Celestine had walked into the bedroom by this time.
Celestine and Mack (the “Defendants”) began to go through the victim’s purse and
call her banks to determine whether she had any available money. The Defendants
took the victim into the bathroom where the lighting was better. Mack continued to
rummage through the victim’s purse, Celestine told the victim to take her clothes off,
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forced her to spread her legs, and inserted his finger inside her vagina. Celestine then
directed the victim back into the bedroom, at which time she “begged him to put on
a condom” because she knew what was about to happen. Celestine put on a condom
and had sex with the victim.
Celestine went to the bathroom after he was finished, and the victim put on her
clothes and went to the living room where Mack had been sitting. When Celestine
joined them in the living room, he and Mack began sending text messages to people
that had called the victim’s phone in an attempt to lure them to the apartment to rob
them. At some point, Mack unbuckled his trousers and asked the victim to perform
oral sex on him. The victim repeatedly asked Mack not to make her do that. Mack
then directed the victim to the bedroom, where she begged him to put on a condom
before having sex with her. Celestine kept the gun while the victim and Mack were
in the bedroom.
After Mack and the victim finished having sex, they returned to the living
room, and the victim told the Defendants that she had to go home because her aunt
was taking care of her daughter. The victim also told the Defendants that she had to
go to her job at a warehouse and that her aunt and her employer would know
something was wrong if she did not return home soon. The Defendants discussed
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taking the victim to and from work and pimping her after she left her job. They
allowed the victim to call her aunt,1 and the victim made arrangements to meet her
aunt at a nearby gas station to pick up her daughter. The aunt became alarmed and
called 911 because the victim never telephoned at 3 a.m. to ask for her daughter and
she seemed nervous and afraid.
The victim and Celestine left the apartment complex and drove to the gas
station. While the victim and Celestine waited at the gas station, 911 dispatch called
the victim for her location, and the victim pretended to be talking to her aunt. Several
police officers later arrived at the gas station, approached the victim’s vehicle, talked
to Celestine and the victim, and then attempted to arrest Celestine. When one police
officer placed a hand on Celestine, he pushed the officer and began to run. The
officers gave chase and apprehended Celestine when he fell. The victim subsequently
gave a description of Mack to a detective, and the detective composed a photo-lineup
of several individuals. The victim identified Mack in the photo lineup and also made
an in-court identification. The victim testified that she did not consent to sex with
Mack or Celestine, and that she did what she was told because the Defendants had a
gun and she believed they would shoot her if she did not comply.
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The victim’s “aunt” was a long-time friend.
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1. On appeal, Mack argues that the evidence was insufficient to convict him
of rape because there was no evidence of force or intimidation and the evidence
shows that victim willingly agreed to have sex. He alternatively argues that he could
not be convicted as a party to the crime of Celestine’s raping of the victim. We
conclude that the evidence was sufficient to establish that Mack raped the victim.
When we review challenges to the sufficiency of the evidence, “[w]e neither
weigh the evidence nor judge the credibility of witnesses, but determine only
whether, after viewing the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Otuwa v. State, 319 Ga. App. 339, 339-40 (734 SE2d 273) (2012)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (99 S. Ct. 2781, 61 LE2d 560) (1979))
(punctuation omitted).
“A person commits the offense of rape when he has carnal knowledge of ... [a]
female forcibly and against her will[.]” OCGA § 16-6-1(a)(1). Carnal knowledge is
statutorily defined as “any penetration of the female sex organ by the male sex
organ.” OCGA § 16-6-1(a). The term “forcibly” means the use of “acts of physical
force, threats of death or physical bodily harm, or mental coercion,” and the phrase
“against her will” means without the victim’s consent. Ponder v. State, 332 Ga. App.
5576, 580 (1) (b) (774 SE2d 152) (2015) (citing State v. Collins, 270 Ga. 42, 43 (508
SE2d 390) (1998)) (footnote omitted).
Here, there is no dispute that Mack had sexual intercourse with the victim, and
the victim testified that the sex was not consensual. Although there is no evidence
that Mack used physical force against the victim, the victim testified she generally
agreed to the Defendants’ requests because they had a gun, which Mack had
previously pointed at her, and she believed they would shoot her if she did not
comply. Lack of resistance, induced by fear, is force within the meaning of OCGA
§ 16-6-1(a)(1), and intimidation may be a substitute for force. See Derr v. State, 239
Ga. 582 (1) (238 SE2d 355) (1977); Curtis v. State, 236 Ga. 362, 362 (1) (223 SE2d
721) (1976). The victim’s testimony that she did not consent to sex and did not resist
the Defendants’ directions to have sex because she was afraid was sufficient to
sustain Mack’s conviction for rape. See OCGA § 24-14-8 (“The testimony of a single
witness is generally sufficient to establish a fact.”); Ellis v. State, 316 Ga. App. 352,
356 (729 SE2d 492) (2012) (the jury was authorized to conclude that the defendant
raped the victim when the victim explained she had sexual intercourse only because
the defendant had a knife in his hand).
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Mack argues that the State did not prove beyond a reasonable doubt that the
victim was intimidated into sexual intercourse because she refused his request for oral
sex without suffering any repercussions and, therefore, she had no reason to believe
that she would be harmed if she refused to have sexual intercourse with him. Mack
also argues that the victim had “plenty of control” over the situation because she
made Mack put on a condom before having sex, and that the victim’s fear of the gun
was negated by the fact that Mack did not have the gun when they had sex. In making
these arguments, Mack is essentially stating that the victim’s fear was not reasonable
and, because it was not reasonable, it was not believable. But Mack’s belief that her
fear was unreasonable is immaterial. It was up to the jury, not Mack or this Court, to
determine the credibility of the victim’s testimony as to lack of consent and whether
she did not resist because she was intimidated. See Roberts v. State, 242 Ga. App.
621, 624 (1) (a) (530 SE2d 535) (2000) (“It is . . . for the jury to determine whether
the victim consented or whether any lack of resistance sprang from reasonable
apprehension of great bodily harm, violence, or other dangerous consequences to
herself or another.”) (footnote and punctuation omitted); Clark v. State, 197 Ga. App.
318, 321 (3) (398 SE2d 377) 380 (1990) (“If it is reasonable to believe the victim did
not consent in this case but complied out of fear, it is immaterial that the defendant
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thought her fears were ‘unreasonable.’”). The fact that the jury answered these issues
adversely to Mack does not render the evidence insufficient. Because we conclude
that the evidence was sufficient to show that Mack raped the victim, we need not
address his alternative arguments about not being a party to the crime of Celestine’s
rape of the victim.
2. Mack also raises challenges to his conviction for aggravated assault, arguing
that the evidence was insufficient to support that conviction and that the trial court
erred in refusing to give a jury charge on the lesser included offense of pointing a
firearm. We need not address these challenges to the aggravated assault conviction,
because we vacate that conviction on the ground that it should have merged with his
armed robbery conviction.
In his motion for new trial, as amended, Mack argued that his conviction for
aggravated assault should have merged with his conviction for armed robbery.
Although the trial court denied Mack’s motion for new trial on all grounds, it
concluded that the aggravated assault conviction should have merged into the armed
robbery conviction, and stated that it would set a date for resentencing. The State
notes that Mack filed his notice of appeal before the trial court scheduled a
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resentencing hearing,2 appropriately concedes that Mack’s merger argument has
merit, and requests that we remand the case for resentencing.
Here, Mack was charged with aggravated assault with a deadly weapon by
pointing a handgun in the victim’s direction. See OCGA § 16-5-21(b)(2). A
conviction for aggravated assault with a deadly weapon merges into an armed robbery
conviction. See Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010).
Therefore, his aggravated assault conviction must be vacated and the case remanded
to the trial court for resentencing. Id. This conclusion moots Mack’s arguments that
the evidence was insufficient to sustain his aggravated assault conviction and that the
trial court erred in refusing to give a charge on a lesser included offense of aggravated
assault. See id. at 889-90 (2) (erroneous jury charge argument mooted when sentence
was vacated on ground it should have merged with another conviction); Wickerson
v. State, 321 Ga. App. 844, 848 n.6 (1) (743 SE2d 509) (2013) (insufficiency of
evidence argument mooted when the sentence was vacated on merger ground).
2
The filing of the notice of appeal divested the trial court of jurisdiction over
the case. See Brown v. State, 322 Ga. App. 446, 448 (1) (745 SE2d 699) (2013) (the
filing of a notice of appeal in a criminal case deprives the trial court of its power to
execute the sentence and precludes the court from altering a judgment while the
appeal from that judgment is pending).
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Judgment of conviction affirmed in part and vacated in part, sentence
vacated, and case remanded with direction. Phipps, P. J., and Dillard, J., concur.
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