McClendon v. State ( 1988 )

Banke, Presiding Judge,

dissenting.

The prosecutrix testified that she was raped by the appellant upon her return home from school on the afternoon of February 13, 1986. Specifically, she stated that the appellant undressed her at that time, placed his penis inside of her, and kept it there for “[a]bout 30 minutes.” She began bleeding from her vagina late the following morning, while she was at school. We are asked to treat the latter occurrence as a circumstance tending to corroborate the child’s account of the alleged rape. See generally OCGA § 16-6-3 (a).

It is undisputed that no vaginal bleeding occurred during the afternoon or the evening following the alleged intercourse, although the prosecutrix testified that she had been involved in a game of jump rope during this period of time. Indeed, it is undisputed that the child experienced no bleeding at any time before she left for school the following morning. (Although the majority implies that the child was attempting to conceal the bleeding at the time of its discovery at school, her teacher’s testimony was to the contrary.)

The physician who examined the child following the discovery of the bleeding attributed it to a ruptured hymen. He testified that the rupture appeared to have occurred “fairly recently, because it was still bleeding.” (Emphasis supplied.) He responded in the affirmative when asked whether the injury could have occurred earlier that day; however, he did not testify, and indeed he was not asked, whether the injury could have occurred the previous day. He stated that he had “absolutely no idea” what had caused the rupture.

Decided June 24, 1988. Richard L. Hodge, for appellant. Hobart M. Hind, District Attorney, Mary Jane R. Palumbo, Assistant District Attorney, for appellee.

The majority speculates that the child’s hymen, weakened by the 30 minutes of intercourse which had supposedly taken place some 18 hours earlier, might finally have ruptured “as a result of aggravation of the trauma” caused by her “squirming” in her wheelchair at school. This is preposterous. We are required on appeal merely to resolve all doubts and conflicts in favor of the jury’s verdict, not to abandon all vestiges of common sense.

The prosecutrix admitted that she had harbored a personal animus against the appellant prior to the occurrence of the alleged rape, testifying that she had not liked him from the first day she saw him “because he looked a little strange.” The child’s mother, the mother’s husband, and several other witnesses supported the appellant’s testimony that he was not at home on the afternoon the alleged rape was supposed to have occurred. Being unable to find any trace of independent evidence in this case tending to corroborate the child’s testimony that she was involved in an act of sexual intercourse on the afternoon in question, I would reverse the appellant’s conviction.

I am authorized to state that Judge Sognier concurs in this dissent.