Coalter v. State

Beasley, Judge,

concurring specially.

1. With respect to Division 1, I agree that the evidence in the record supports convictions of aggravated assault (by pointing a pistol at the victim, OCGA § 16-5-21 (a) (2)) and false imprisonment (by confining the victim, OCGA § 16-5-41 (a)). However, in summarizing the evidence, I do not believe we can say that the state’s evidence shows that defendant raped the victim. The jury could not reach a verdict on this charge, a mistrial was declared as to it, and the state subsequently filed a nolle prosequi.

2. Division 2 makes reference to “the independent crime.” The objection which created an issue was not based on whether defendant was the person who committed it or rather someone else. Instead, the issue was whether the incident constituted a crime. Defendant admitted having sexual relations with the witness who testified about the 1981 Panama incident but claimed that it was consensual and thus did not constitute a prior “crime” or “offense” and was inadmissible for that reason. I agree that there was sufficient evidence that non-consensual intercourse took place at the earlier incident so as to meet the prerequisites for admitting the testimony of the occurrence. The credibility and weight to be given to the testimony of the witness was a matter for the jury.

3. Defendant’s double jeopardy claim regarding the prior incident concerns only the federal constitutional collateral estoppel bar which is explained in Moore v. State, 254 Ga. 674 (333 SE2d 605) (1985). Although appellant in his enumeration cites also the Georgia constitutional provision against double jeopardy, he makes no argument to show that there was a violation of the state constitutional double jeopardy prohibition. Nor does he show that the collateral es-toppel concept is embraced in Georgia’s constitutional provision. None of the cases cited below or here deal with the question. Moore clearly was based only on a federal constitutional claim. Our opinion should thus be recognized as limited to this scope, as a state constitutional claim was not raised below and is not adequately raised here. Gabler v. State, 177 Ga. App. 3, 4 (2) (338 SE2d 469) (1985).

The gist of the alleged violation is that collateral estoppel applies to the Article 32 disposition, which according to defendant’s testimony constituted a dismissal “due to uncorroborated testimony.” I agree that this action by the United States military does not constitute collateral estoppel in the circumstances of this case such as to violate the federal double jeopardy clause, as prohibited under Ashe v. Swenson, 397 U. S. 436 (90 SC 1189, 25 LE2d 469) (1970). The fact of rape vel non was not litigated to a conclusion in defendant’s favor by the Article 32 proceeding.

Decided June 17, 1987. Harry J. Fox, Jr., Laurens C. Lee, for appellant. G. Theron Finlayson, District Attorney, Edward D. Lukemire, Assistant District Attorney, for appellee.