Kent v. State, 538 S.E.2d 185 (Ga. Ct. App. 2000). · Go Syfert
Kent v. State, 538 S.E.2d 185 (Ga. Ct. App. 2000). Cases Citing This Book View Copy Cite
59 citation events (57 in the last 25 years) across 3 distinct courts.
Strongest positive: Shenghua Hong v. State (gactapp, 2023-01-23)
Treatment trajectory · 2000 → 2026 · click a year to view as-of
2000 2013 2026
Top citers, strongest first. 21 distinct citers.
discussed Cited as authority (rule) Shenghua Hong v. State (2×) also: Cited "see"
Ga. Ct. App. · 2023 · confidence medium
Since the evidence 4 “[I]t is well established that the continuing witness rule is inapplicable where the document at issue is original documentary evidence or where the document is non-testimonial in nature because it was not a reduction of or substitute for a person’s oral statements or testimony.” (Citation and punctuation omitted.) Pattarozzi v. State, 358 Ga. App. 675 , 679 ( 856 SE2d 51 ) (2021). 12 contained in the statement was also brought out during the trial and the evidence of guilt was overwhelming, there was no harm.” Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 18…
discussed Cited as authority (rule) John Marvin Nix v. State
Ga. Ct. App. · 2020 · confidence medium
See Dockery v. State, 308 Ga. App. 502, 506-507 (4) ( 707 SE2d 889 ) (2011) (continuing witness error was harmless because of the evidence of overwhelming guilt and the erroneously admitted evidence was cumulative of the evidence already presented); Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (continuing witness error was harmless because “the evidence contained in the statement was also brought out during the trial and the evidence of guilt was overwhelming” and because the victim was extensively cross-examined about her written statement and any inconsistencies or al…
examined Cited as authority (rule) Goggins v. the State (6×) also: Cited "see"
Ga. Ct. App. · 2014 · confidence medium
See Roberts, supra at 533 (10); Kent, supra at 533 (3); Hinton, supra at 214 (1).
examined Cited as authority (rule) Jessie Jerome Goggins v. State (3×) also: Cited "see"
Ga. Ct. App. · 2014 · confidence medium
See Roberts, supra at 533 (10); Kent, supra at 533 (3); Hinton, supra at 214 (1).
discussed Cited as authority (rule) Keith McBurrows v. State
Ga. Ct. App. · 2013 · signal: cf. · confidence medium
See Parks, supra, 199 Ga. App. at 738-739 (2) (1991) (holding harmless the submission to the jury of photo identification sheet 4 The first victim also testified that when she was shown the photo lineup, she immediately identified McBurrows as the person who robbed her, which was consistent with the comment on her admonition sheet that it was an “Instant ID.” 16 containing comment that “[i]t has to be # 2 because the mustache and lips matched the robber”); cf. Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (allowing victim’s statement to go out with jury violated th…
discussed Cited as authority (rule) McBurrows v. State
Ga. Ct. App. · 2013 · signal: cf. · confidence medium
See Parks, supra, 199 Ga. App. at 738-739 (2) (holding harmless the submission to the jury of photo identification sheet containing comment that “[i]t has to be # 2 because the mustache and lips matched the robber”); cf. Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (allowing victim’s statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence contained therein was brought out during trial and evidence of guilt was overwhelming). 5.
cited Cited as authority (rule) Thomas Sims v. State
Ga. Ct. App. · 2012 · confidence medium
See Broadnax-Woodland v. State, 265 Ga. App. 669, 670 (1) ( 595 SE2d 350 ) (2004); Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000).
cited Cited as authority (rule) Sims v. State
Ga. Ct. App. · 2012 · confidence medium
See Broadnax Woodland v. State, 265 Ga. App. 669, 670 (1) ( 595 SE2d 350 ) (2004); Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000).
discussed Cited as authority (rule) Kirkland v. State
Ga. Ct. App. · 2012 · signal: cf. · confidence medium
(Citation and punctuation omitted.) Decapite, supra, 312 Ga. App. at 836 (3) (counsel was not ineffective for permitting a search warrant and affidavit to go out to the jury where the affiant testified at trial, was subject to extensive cross-examination, and his testimony was cumulative of other evidence); cf. Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (allowing victim’s statement to go out to the jury violated the continuing witness rule, but the error was harmless since the evidence it contained was brought out during trial and evidence of guilt was overwhelming).
discussed Cited as authority (rule) McKenzie v. State
Ga. Ct. App. · 2009 · confidence medium
However, because the McKenzies’ crimes occurred in 2004 and 2005, the 2007 amendment is not applicable in this case. 3 OCGA § 16-9-120 (4) (D), (Q) (2003). 4 See Archer v. State, 291 Ga. App. 175, 176 (1) ( 661 SE2d 230 ) (2008) (upholding identity fraud conviction where defendant stole employer’s check and forged them as payable to himself); Lee, supra at 827 (1) (upholding identity fraud conviction where defendant attempted to access company’s resources through the use of its hank account information and fraudulent payroll checks). 5 OCGA § 16-9-125. 6 See State v. Mayze, 280 Ga. 5, …
discussed Cited as authority (rule) Clark v. State
Ga. · 2008 · confidence medium
“As a general rule, allowing the written statement of an alleged victim to go out with a jury violates the continuing witness rule. [Cit.]” Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000).
discussed Cited as authority (rule) Houston v. State
Ga. Ct. App. · 2004 · confidence medium
Conroy, Assistant District Attorney, for appellee. 1 Richardson told officers she was 80 percent certain that the photograph she identified was that of the robber. 2 Beasley v. State, 269 Ga. 620, 623 (4) ( 502 SE2d 235 ) (1998); Herndon v. State, 253 Ga. App. 543, 546-547 (2) ( 559 SE2d 749 ) (2002). 3 261 Ga. 640, 642 (2) (b) ( 409 SE2d 649 ) (1991). 4 Brooks v. State, 230 Ga. App. 846 ( 498 SE2d 139 ) (1998). 5 (Citation and punctuation omitted.) Williams v. State, 264 Ga. App. 115, 117 (2) ( 589 SE2d 676 ) (2003). 6 See id. 7 Id.; Gay v. State, 258 Ga. App. 854, 855 (1) ( 575 SE2d 740 ) (2…
discussed Cited as authority (rule) Cox v. State
Ga. Ct. App. · 2003 · confidence medium
Johnson, P. J., and Mikell, J, concur. 1 Loney v. State, 245 Ga. App. 376, 377 ( 537 SE2d 780 ) (2000). 2 (Citation and punctuation omitted.) Jenkins v. State, 201 Ga. App. 654, 656 (2) ( 413 SE2d 460 ) (1991). 3 240 Ga. App. 139 ( 522 SE2d 279 ) (1999). 4 Compare also State v. Winnie, 242 Ga. App. 228 ( 529 SE2d 215 ) (2000) (stop not supported by testimony about criminal activity in the area or by the vehicle’s attempt to drive away upon the approach of a police cruiser). 5 (Footnote omitted.) Walczak v. State, 259 Ga. App. 140, 141 (1) ( 575 SE2d 906 ) (2003). 6 (Citation omitted.) Tibbs …
discussed Cited as authority (rule) Sagenich v. State
Ga. Ct. App. · 2002 · confidence medium
Drolet, Solicitor-General, Julie A. Kert, Assistant Solicitor-General, for appellee. 1 Bryant v. State, 270 Ga. 266, 270-271 (3) ( 507 SE2d 451 ) (1998). 2 Gabbard v. State, 233 Ga. App. 122, 124 (3) ( 503 SE2d 347 ) (1998). 3 Fields v. State, 266 Ga. 241, 243 (2) ( 466 SE2d 202 ) (1996). 4 Summage v. State, 248 Ga. App. 559, 561 (1) ( 546 SE2d 910 ) (2001). 5 Vinyard v. State, 177 Ga. App. 188, 190 (1) ( 338 SE2d 766 ) (1985). 6 Brewton v. State, 174 Ga. App. 109, 110-111 (2) ( 329 SE2d 270 ) (1985). 7 Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000).
discussed Cited "see" Dalton O. Christie v. State (2×)
Ga. Ct. App. · 2026 · signal: see · confidence high
See generally Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (where evidence contained in the statement was also brought out during the trial and evidence of guilt was overwhelming, there was no harm); Gough v. State, 236 Ga. App. 568, 569-570 (2) ( 512 SE2d 682 ) (1999) (continuing witness error was harmless in part because the statement was also brought out during trial).
discussed Cited "see" Roberts v. State (2×)
Ga. · 2007 · signal: see · confidence high
See Kent v. State, 245 Ga. App. 531 (3) ( 538 SE2d 185 ) (2000); Gough v. State, 236 Ga. App. 568 (2) ( 512 SE2d 682 ) (1999). 11.
discussed Cited "see" Hopkins v. State (2×)
Ga. Ct. App. · 2007 · signal: accord · confidence high
Accord Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (allowing victim’s written statement to go out with the jury violated the continuing witness rule). 6 (Citation omitted.) Tibbs u.
discussed Cited "see" Kirton v. State (2×)
Ga. Ct. App. · 2000 · signal: see · confidence high
See Kent v. State, 245 Ga. App. 531, 533-534 (4) ( 538 SE2d 185 ) (2000) (court properly denies giving a charge that is inapt or incorrect or misstates the law); see generally Register v. State, 229 Ga. App. 648 (1) ( 494 SE2d 555 ) (1997).
discussed Cited "see, e.g." Decapite v. State (2×)
Ga. Ct. App. · 2011 · signal: see also · confidence medium
See also Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (allowing victim’s statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence it contained was brought out during trial and evidence of guilt was overwhelming).
discussed Cited "see, e.g." Banks v. State (2×)
Ga. Ct. App. · 2006 · signal: see also · confidence medium
See also Kent v. State, 245 Ga. App. 531, 533 (3) ( 538 SE2d 185 ) (2000) (allowing victim’s statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence contained therein was brought out during trial and evidence of guilt was overwhelming); Gough v. State, 236 Ga. App. 568, 570 (2) ( 512 SE2d 682 ) (1999) (same). 8 See Sims v. State, 165 Ga. App. 881, 884 (5) (c) ( 303 SE2d 60 ) (1983). 9 See Strickland v. State, 247 Ga. 219, 223 (13) ( 275 SE2d 29 ) (1981).
discussed Cited "see, e.g." Velazquez v. Commonwealth (2×)
Va. Ct. App. · 2001 · signal: see also · confidence low
Looking at her qualifications, the Court of Appeals of Georgia held that the trial court properly qualified the SANE nurse as an expert in “the field of examination of sexual assault victims.” Id.; see also Kent v. State, 245 Ga.App. 531 , 538 S.E.2d 185, 188 (2000) (SANE nurse testified as an expert that “the multiple tearing she observed in the victim’s vaginal area was consistent with the use of force and not with normal sexual intercourse”). 5 *198 Appellant relies on Combs, 256 Va. 490 , 507 S.E.2d 355 , for the proposition that no expert witness can give an opinion regarding ca…
Kent
v.
the State
A00A0984.
Court of Appeals of Georgia.
Aug 11, 2000.
538 S.E.2d 185
Slemons & Spahos, David E. Slemons, for appellant., Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Frances D. Hakes, Assistant District Attorneys, for appellee.
Miller, Pope, Mikell.
Cited by 26 opinions  |  Published
Miller, Judge.

Greg Kent was convicted of rape, aggravated sodomy, and aggravated assault. For sentencing purposes, the conviction for aggravated assault merged with the rape count. Following the denial of his motion for new trial, Kent filed this appeal. Kent now challenges the sufficiency of the evidence, the composition of the jury array, an evidentiary ruling, and the trial court’s refusal to give a charge on fornication. Having examined each of these issues and finding no error, we affirm.

1. Kent contends that the rejection of his pretrial challenge to the array violated his constitutional rights and the principles of fundamental fairness. He argues that the panel was comprised of too few persons of his race, gender, and age.

Kent misperceives the law. While traverse jury lists must consist of a representative and fair cross-section of the community to the fullest extent possible, the same is not true of an array. [1] Provided that persons are not systematically excluded on the basis of race or other cognizable grouping, and provided that the jurors comprising a panel are randomly selected from a representative pool, the selection process is not inherently defective. [2]

In this case, the Traverse Jury Certificate filed in the clerk’s[*532] office and dated May 19, 1998, showed that “as to groups: whites, blacks, men and women over 18 in Dougherty County, that imbalance is below 5%, which is the threshold.” This same certificate indicated that the statistical imbalance on the traverse jury list between males and females was 0.2 percent and the disparity for whites was 0.14 percent and for blacks was 0.26 percent. [3] The trial court determined that the traverse jury list was representative of the population in Dougherty County, and no evidence showed otherwise. The court also found that the 35 jurors selected for Kent’s case had been “randomly selected by a computer drawing from what I have determined to be a properly constituted list.” Since Kent failed to establish any flaw in the selection process such as manipulation, misuse, or systematic exclusion of cognizable groups, the trial court properly rejected his challenge to the array. [4]

2. Kent asserts that the verdict is contrary to law and without sufficient evidence to support it. We disagree.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Kent no longer enjoys the presumption of innocence. [5] Although this court determines the sufficiency of evidence, it neither weighs the evidence nor assesses witness credibility. [6]

When so viewed, the evidence established that Kent forced the victim to engage in sexual intercourse and oral sex. To coerce the victim into submission, Kent shoved, choked, and beat her, causing her to defecate upon herself. These crimes occurred at the victim’s residence where she and Kent had resided together until their break-up the month before.

After threatening to kill her, Kent pushed the victim down on the bed. Kent said, “I told you and I told you over and over, if I can’t have you nobody else is going to have you.” Ignoring her pleas, he orally sodomized her. Kent resumed choking her, pinned her down, forced her legs apart, then raped her notwithstanding her continued pleas. When Kent finally left her home, the victim immediately called police.

Photographs depicting visible injuries to the victim’s neck, legs, and vaginal area were admitted into evidence. Just hours after the rape, the Director of the Sexual Assault Nurse Examiners Program, Connie Knowles, conducted a physical examination of the victim.[*533] Knowles testified as an expert in the field of the examination of sexual assault victims. According to Knowles, the multiple tearing she observed in the victim’s vaginal area was consistent with the use of force and not with normal sexual intercourse. The day after the sexual assault, Sergeant Eddie Jones interviewed the victim, and she wrote out her statement in his presence. According to Jones, although “she changed maybe a couple words,” her statement was consistent. Jones testified that he noticed bruises on the victim’s neck and legs.

3. Kent contends that the trial court erred in permitting a written statement made by the rape victim to go out with the jury.

After the statement was read into evidence and the prosecutor wanted to show it to the jury, Kent objected to its length and the fact that portions of it were stricken out and overwritten. While cross-examining both the detective and the victim, defense counsel vigorously pursued the inconsistencies and alterations the victim had made while composing her statement. Finding the actual appearance of the statement in issue, the trial court admitted the statement over a continuing witness objection.

As a general rule, allowing the written statement of an alleged victim to go out with a jury violates the continuing witness rule. [7] Although the State claims that the document was not offered for the purpose of bolstering the victim’s testimony but because the text of the statement had several scribbles, scratches, mark-throughs and cross-outs, the State cites no case and we have found none that would permit the admission of this exhibit. [8] The victim was available to testify and did so. Allowing the statement to go out with the jury violated the continuing witness rule. Nevertheless, a judgment need not be reversed unless the error is harmful. Since the evidence contained in the statement was also brought out during the trial and the evidence of guilt was overwhelming, there was no harm. [9] In light of the medical testimony and photographic evidence showing the use of brute force, and since the victim was extensively cross-examined about her written statement and any inconsistencies or alterations, it is highly probable that the jury’s view of this exhibit did not contribute to the verdict. [10]

4. Kent contends that the trial court erred by providing the jury with a written copy of the charge and by denying his requested[*534] charge on fornication. [11] He argues that since he and the victim routinely had engaged in consensual sexual intercourse, the critical issue was use of force. He claims that the jury should have been permitted to make a force determination.

Decided August 11, 2000. Slemons & Spahos, David E. Slemons, for appellant. Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Frances D. Hakes, Assistant District Attorneys, for appellee.

Among other requirements, a jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law. [12] Whenever any part of a requested charge is confusing, inapt, incorrect, or not authorized by the evidence, denial of the request is proper. [13]

Contrary to Kent’s contention, the offense of fornication is not a lesser included offense to the crime of rape. [14] Thus, the trial court correctly refused to give an instruction misstating the law. [15] Moreover, the trial court properly instructed the jury that “[i]n both rape and aggravated sodomy the State must prove beyond a reasonable doubt that the victim did not consent to the act of aggravated sodomy or rape.” The court further charged, “[c]onsent on the part of the alleged female victim is fatal to a conviction for rape and for aggravated sodomy.” The charge as a whole covered the concept of force that Kent desired.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.
1

Williams v. State, 213 Ga. App. 458, 459 (1) (444 SE2d 831) (1994).

2

See Meders v. State, 260 Ga. 49, 54 (2) (c) (389 SE2d 320) (1990); Jackson v. State, 270 Ga. 494, 497 (4) (512. SE2d 241) (1999) (defendant needed to present evidence showing that young adults had been consistently underrepresented).

3

While the percentage of blacks age 18 and over in the county was 45.26 percent, the percentage of blacks age 18 or over on the list was 45.52 percent.

4

Jewell v. State, 261 Ga. 861, 862-863 (3) (413 SE2d 201) (1992); see Pryor v. State, 231 Ga. App. 136, 137 (1) (497 SE2d 805) (1998).

5

Sanders v. State, 236 Ga. App. 578 (512 SE2d 678) (1999).

6

Sweet v. State, 237 Ga. App. 613, 614 (1) (516 SE2d 317) (1999).

7

Gough v. State, 236 Ga. App. 568, 570 (2) (512 SE2d 682) (1999); see OCGA § 24-2-4.

8

Compare Smith v. State, 236 Ga. App. 122, 126 (4) (511 SE2d 223) (1999) (victim’s statement was properly admitted as part of res gestae).

9

Gough, supra, 236 Ga. App. at 570 (2).

10

Hinton v. State, 233 Ga. App. 213, 214 (1) (504 SE2d 49) (1998).

11

At the motion for new trial hearing, the trial court stated for the record that the court routinely provided the jury with a written copy of the charge as given and also charged the jury that it was to consider the instructions as a whole. Although Kent enumerated this procedure as error, he abandoned the issue by not addressing it in his brief. Court of Appeals Rule 27 (c) (2). In any event, no error occurred. Anderson v. State, 262 Ga. 26, 28 (3) (a) (413 SE2d 732) (1992) (trial court is authorized but not required to give a written copy of the charges to the jury).

12

Register v. State, 229 Ga. App. 648 (1) (494 SE2d 555) (1997).

13

Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991).

14

Speer v. State, 60 Ga. 381, 382 (1878) (as a matter of law, “fornication cannot be forcible and against the woman’s will”).