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DEEN, Presiding Judge.
Armed robbery, etc. Floyd Superior Court. Before Judge Royal.
Ernest Young brings this appeal following the denial of his motion for a new trial. He was convicted of armed robbery, aggravated assault with intent to rape, and possession of a firearm during the commission of a felony. He received sentences of 15 years, 10 years, and 5 years respectively. The latter two sentences were to be served con currently with the armed robbery sentence. He contends that there was no evidence to support the jury verdict of guilty on the charge of aggravated assault with intent to rape. Held:
Young was charged with assault as defined in OCGA 16-5-20 and an aggravation of that assault by an intention to rape as found in OCGA 16-5-21. "[S]ince assault is an 'attempted' battery, there must be a substantial step toward committing a battery before there can be an assault [OCGA 16-4-1]. The 'substantial step' requirement thus relates to the first essential element of [OCGA 16-5-21], the assault, and not to the second element, the intent to rape. The crime of aggravated assault with intent to rape is complete when there is a 'substantial step' toward a battery of the victim, i.e., an assault, coupled with intent to rape . . . If there is a substantial step toward the rape itself, the crime would then become attempted rape. [Cits.]" Bissell v. State, 153 Ga. App. 564 (266 SE2d 238) (1980) (emphasis supplied); Lester v. State, 173 Ga. App. 300 (325 SE2d 912) (1985).
The evidence shows that the "substantial step" requirement was satisfied by appellant's actions toward the victim. As to the requirement that he had to formulate an intent to rape, we find that the jury was instructed as to intent and that appellant's actions in forcing the victim into another room, tying her up, and touching her genital area was sufficient evidence for the jury to find intent to rape. They could also find that his statement that he did not have time to actually attempt to rape her did not abrogate his intent.
Stephen F. Lanier, District Attorney, Danny Crabbe, Assistant District Attorney, for appellee.
William H. Newton III, for appellant.
Thursday May 21 14:32 EDT

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