The Georgia Court of Appeals held that the defendant’s rape convictions should be affirmed despite the fact that the trial court gave an apparent sequential instruction to the jury regarding how they should consider the lesser included offense of sexual battery. The Court also found that while it was error for the trial court not to notify the parties until after closing argument that it would instruct the jury on the lesser offense of sexual battery, the error did not affect the outcome of the trial.
In Seals v. State, the defendant was convicted following a jury trial of two counts of rape and other related offenses. On appeal, he argued that the trial court committed two errors with regards to its instruction to the jury on the lesser offense of sexual battery.
First, the Court of Appeals recognized that it was error for the trial court to defer its ruling on the defendant’s request for the lesser offense instruction until after closing arguments. The Court first pointed out that OCGA § 5-5-24 requires that “The court shall inform counsel of its proposed action upon the requests [for jury charges] prior to their arguments to the jury.” The Court then cited its prior decisions which have held that this is a mandatory rule that is designed to allow the attorneys to “argue the case intelligently before the jury.” As such, the Court has previously held that violations of this rule will constitute reversible error.
However, as the Court pointed out, defense counsel did not object to the trial court’s deferral of its decision at the time of trial. Therefore, it must constitute “plain error” in order to result in a reversal. The Court found that although the error was clear and obvious, because the defendant testified at trial that he had consensual sex with the alleged victims, it could not be said that the error affected the outcome of the trial. The Court reasoned that if defense counsel argued in closing that they should convict the defendant of sexual battery, it would not have been supported by the evidence and it may have only served to confuse the jury.
The defendant also argued that the trial court gave an improper sequential jury instruction regarding the jury’s consideration of the sexual battery offense. The jury was instructed as follows: “Now, as to the first two counts of the indictment only, if you do not believe beyond a reasonable doubt the defendant is guilty of the offense of rape, on either one or both charges, but you do believe beyond a reasonable doubt that he is guilty of the offense of sexual battery, then you would be authorized to find him guilty of sexual battery.”
The defendant argued that this was an improper sequential jury instruction because it required the jury to consider the sexual battery offense only if they had considered and found the defendant not guilty of the rape charges. The Court rejected this argument and held that it is permissible to instruct the jury to consider the indicted offense before considering the lesser offense as long as the instruction does not suggest that the jury was required to reach a unanimous verdict as to the rape charges before considering the lesser offense of sexual battery. The Court noted that since no such language was included in this instruction, it did not violate the sequential jury charge rule.
Lastly, the Court stated that in order to constitute an improper sequential jury charge, there must have been sufficient evidence to authorize a guilty verdict on the lesser offense. In reviewing the evidence at trial, the Court pointed out that since the defendant testified that he had sex with both alleged victims, the evidence did not support the sexual battery charge. Thus, the Court concluded that even if the language of the instruction was improper, it still would not have constituted reversible error.
As a result, the Court affirmed the defendant’s rape convictions as well as his convictions for the remaining offenses.