1 Jor dan wa s ac qu itted of r ape and kid nap pin g. THI RD DI VI SI ON BA RN ES , P. J ., BOGG S and BRAN CH, JJ. NOTICE: Motions for reconsideratio n m ust be physically

received

in our clerk’s office with in ten days of the date

of decisi on to be deeme d timely filed. http://ww w.gaappeals.us/rules/ July 1 6, 2014


# In the Court of Appeals of Geo rgia
A14A0643 . J ORDAN v. THE STATE
. B RANCH , Judge. Following hi s c onv ic ti ons fo r a ggr avate d as saul t and s odo my 1 and the denial of his moti on for new tria l, James Will iam Jordan appeal s and contends the trial court erredinst ruct ing the jury onthe law of sodomy and by allowing evidence of a simil ar transact ion. We agree that the tria l court er red when it f

ail ed to r espond to a

questi on from the jury by i nforming the j ury of the cat egory of s exual a cts de cri minali zed by
our Suprem e Court’s decis ion in Po well v . State , 270 Ga. 327 (510 SE 2d 18) (19 98), which am oun ted to Jord an’s sole defense to the sodo my ch arge. We therefore reverse Jord an’s con victio n an d rem and for a n ew trial.2

Construed in favor of the verdict, see Jackson v. Virg inia , 443 U . S. 307 (III) (B) (99 SCt 2781, 61 LE2 d 560) (1979), the evidence shows that the victi m an d Jordan ended their ro ma ntic re lation ship in m id-F ebru ary 2 009 but th at the v ictim admittedhaving sex with Jordan twice in the 24 hours leading up to the i ncident at issue. On the eveni ng of February 2 7 , 2009, the vi ctim, Jor dan, and Liane Miller returnedto Mill er’s house fol lowing an e vening at a loca l esta blishment. Mill erasked Jordan to le ave aft er he di scha rged a firea rm in her h ous e, and the v ictim left w ith hi m. The vict im then wal ked a short dis tance to the place where she w as st aying, argui ng wi thJo rd anal ong th e way. Whenth e two rea ched the driveway, Jor dan grabbed her hair and shi rt, and when the victim res is ted, her shirt c ame off. Jordan told the vict im that he had a pist ol in his pocket , and he ordered her to go with him to his cam per lo cate d a short dist ance away and held her arm as they walked. In the camper, Jord an to ld the vic tim to un dres s, called her a wh ore, an d or dere d he r to perform oral sex on him. When she refused , he force d her by putting a knife to her thro at, and forc ed her movement s duri ng oral sex such t hat she susta ined i njuri es and threw up. While s til l holding the vict im at knifepoint , Jordan thenatt empted t o have forcib le anal s ex w ith he r. W hen that atte mp t wa s un succ essfu l, Jord an h eld th e victim against a wall by the neck with her feet off the gro und and told h er he wa s go ing to3

killher i f she left

him. To escape, t

he victi m told Jordan that she would callanother
wom an so the t

hree of them cou ld have sex, and she cal led Miller to ask to borrow her
car. When the couple retur ned to Miller’s house, Jordan askedMiller if he could use the ca r, but the victim signaled to M iller by putting her hands to her t hroat an d shaking her head “no,” and Miller refused Jordan’s reques t. Jordan be came angry, and the vict im ran t o t he bathroom, locked hersel f in, and called the police. Jordan thr eatenedto k ick the door down, but the vi cti m stayed i n the bat hroom untilthe po lice a rriv ed a nd arre sted Jor dan
. The State also in trod uced evid ence sho win g tha t Jord an’s unc le sug geste d t o the vict im that

she testi fy that she c ould not recal l the event s, as wellas evidence that Jordan asked the v ictim to tell th e jury that sh e had lied to the p olice a nd th at “it was all will ing[ ] and rough se x.” I n addit ion, the State intro duc ed a le tter fro m J ord an to the vi cti m in which he pr ofess ed love t o her and s tat ed If I get convi cted, do not blame yoursel f for it, but with you on my side, the odd s are fo r me . He doe s no t h ave a c as e onme without you . . . but he do n’ t know t hat you are go ing to com e to court for me an d he don ’t kn ow tha t yo u ar e go ing to b e M s. Jo rda n w hen I ge t ou t. The sexu al assa ult nurse who saw the vict im within six hours of t he incident t estif

ied thatthe vict im’s injuri es were “the most severe i njury to an oralcavity that I’ve se en4

[since 199 6].” T he n urse also te stified that m arkin gs o n th e victim’s neck w ere consis tent

with havi ng a kni fe he ld ag ain st her neck, that bruises on her neck were consis tent

with having been choked, and that t he victi m had injuri es in the analarea. 1. The eviden ce was sufficient to suppo rtthe co nvic tions of ag grav ated a ssau lt, for thre atening to inj ure the victim with t he knif e, and non-conse nsual s odomy, for forcing th e victi m to engage in oral sex. See OCG A §§ 16-5-21 (a) (aggravated assault); 16-6-2 (a) (1) (sodom y). 2. Jordan c ontends t

he tr ialcourt

erre d by failing to give a correct jury charge regar ding sodomy in it s ini tia l charge and by fa iling to res pon d pr ope rly to the jury’s questi on about the defi nition of sodomy. We agree w ith the second of these
con ten tion s. The tri al cour

t ins truc ted the jury t

hat Jordan had been c harged “wi th the offense of sodomy for the sai d accused
. . . did perform a sexualact wi th the person of [the vict im] i nvolving t he sex or gans of t

he accus ed and the mo uth of s aid per son ,” which tra cks the langu ag e o f OC GA § 16-6-2 ( a) (1) . Foll owing the c omplete charge to the jury, Jordan asked that the term “by f orce” be added to the s odomy charge, cit ing Po well , 2 70 G a . at 336 (3) ( “OCGA § 16-6-2, insof ar as it c rimina liz es the performance of pri vate, unforce d, non-c ommercialacts of sexua l intimacy between5

persons legally able to consent , manifest ly infringes upon a constituti onal provis ion which guarantees to the citizens of G eorg ia the ri ght of privacy. ”) (c itation and punctuation omitt ed). See al so State v. East wood , 243 Ga. App. 822, 823 (535 SE2d 246) (2000) ( applyi ng Po well to uphold t he trial court’s decisi on to void d efendant’s
so domy convictions where fa cts showed that defe ndant engaged in consen sual , unforce d, private, and non com me rcial acts o f sod om y w ith a p erso n leg ally ab le to give consent). The tria l court

denied t he reque st. During the deliberat ions, the j ury aske d the court about the “legal definition of sodo my.” In respon se, the court sim ply read t o the jury from the stat

ute as foll ows: “A person c ommits the offens e of sodomy when he per fo rms any sexualact involving the se x organs of one per son and the mouth or anus of another.” Jordan did not object to the court’s answer. On appeal, Jordan argues t hat because consent w as argued to the jury as h is sole defense, the court’s refus al to add the term “by force ” to th e cha rge w as cle arly h arm ful and err oneous as a matte r of law
. We first

point out that

Jordan did not present a writte n req uest t o charge on Po well or conse nt as a

defens e to sodomy, and6

[a] crim inal d efen dan t is ord inarily requ ired to pres ent w ritten re que sts forany desired jury instructions. OC GA § 5–5– 24 (b). He is re lie ved of this duty only where the omission is cl early harmful and erroneous as a matterof law in tha t it fails to pr ovid e the ju ry w ith the proper guidel ines for deter mining guilt or i nnocence. Shepherd v. Sta te , 28 0 Ga. 245, 252 (4) ( 626 SE2d 96) (2006) ( cit ati on and punctuation omitt ed). Neverthe less , “[ w]hen a gi ven inst ruct ion fa ils to provi de the jury with the proper

guidel ines f

or det ermini ng guilt

or innoc ence, it i s cle arl y harmful and e rroneous as a matte r of law.” Ch ase v . State , 277 Ga. 636, 639 (2) (592 SE2d 656) (20 04) (citatio ns an d pu nctu a tion omitted). Specifically, “‘[a] trial court must charge the j ur y on the d efen dan t’s so le defense , even with out a writte n req uest, if there is some eviden ce to support the ch arge.’ ” Pric e v. Sta te , 289 Ga. 459 (2) ( 712 SE2d 828) (2011) , quot ing Ta rvesta d v. S tate , 26 1 G a. 60 5, 606 (409 SE2d 513) (1991). In addi tion, “[w]he n the j ury is confuse d and in doub t and requests further inst ruct ions on a particul arpoint, it is t he duty of the co urt to fu rthe r ins truc t the m.” Freeman v. Sta te , 142 Ga. App. 293, 294- 295 (4) ( 235 SE2d 560) (1 977) (ci tat ions omitted).2 We also note that the f acts as pre sente d to the jury may wel l have j usti fie d a charge of aggravated s odomy, which i s distinguis hed from sodomy by either the use of “forc e . . . aga inst

the will of” a vi cti m or a victim’s age being “les s th an t en y ears .” OC GA § 16-6-2 (a) (2). 7 Force is not

an “el ement” of

the sodo my statut e. 2 None th el es s, our Supr eme Court’s decis ion in Po well decriminali zed “private , unforced, non-comm ercialacts of sexual intim acy b etw een p erso ns leg ally ab le to co nsen t” that w ould othe rwis e fall under the purview of the sodomy stat ut e. 270 Ga. at 336 (3). Further, in a case involvi ng sol ic it at io n of sod omy t

hat nec es sari lyin vol vedth e de fi ni ti on o f s odo my under Georgia law, our Supreme Court has held that
as con strue d in Po well an d Howard [ v. Sta te , 272 Ga. 242 (527 SE2d 194) (20 00) ], an ind ividu al vio lates th e solic itation of so dom y statu te if he (1) so licits another indivi dual (2) to perf orm or submit to a sexual act invo lving the se x or gan s of o ne an d the mo uth or anus of the other and (3) such sexu al act is to be per formed (a ) in publ ic; (b) in exchange for mon ey or anything of comm ercial value; (c) by force ; or (d) by o r with an indiv idua l wh o is incapa ble of giving l egal c onsent to sexualactivity.
Watson v. Sta te , 293 Ga. 81 7, 820 (1) (750 SE 2d 143 ) (2013) (em phasis supplied). The facts before us raise no issue as to t he scenarios r aisedin categories (3) (a), (b),
or (d) of Watson . Yet e ven in the wake of the jury’s ques tion o n t he defi niti on of sodomy, the tria l court fa ile d to inf orm the j ury that an absen ce of force was, under8

the facts of this case and in light of Po well , How ard , and Watson , a possible defense to that crime. In short , and alt hough the State put on evidence t hat Jordan forcedthe victim to en gag e in sodomy, the tri al court s hould have treat ed Jordan’s request that the jury be c harged onforce “as a n elem ent” o f the s odo my statute as a re que st to charge on the category of “pri vate, unf orce d, no n-co mm ercial a cts of sexual intimacy between pers ons legally able to consent ” decr iminal ized in Po well , which t he record sh ows was J ordan’s sole defense to the crim e. Accordingly, w e reverse Jordan’s conviction of sodomy and remand for a new tria l on that charge. See Price , 289 Ga. at461-462 (2) (reve rsi ng conviction for burglary w hen trial court failed to charge jury on defend ant’s sole defense of mist ake of f act, and wh en “ the ch arge give n actu ally did nothing to properly infor m the jur y aboutthe true nature” of that defense); Boone
v. State , 250 Ga. A pp. 133, 144 (16) (549 S E2d 7 13) (2001 ) (reversing only those convictions affected by erron eous jury instruction). 3. Jordan c ontends t

he tr ialcourt

erre d by all owing similar transact ion ev idence. Evidence o f a si milar

transact ion may be admit ted i f the Stat e carrie s it s burden o f sho win g tha t: (1) it s eeks t o introduce the evidenc e “notto rais e an improper inference as to the accuse d’s charact er, but for som e appr opriate purpose which has b een d eemed to be an exception to t he gener al r

ule of9

inadmissibil ity”; (2) “ there is suffi cient evidenc e to es tabl ish t hat the accused comm itted the independent offense o r act”; and (3) “there is a suffi cient

connect ion or s imil ari ty between t h e indepe ndent of fense or actand the crime charged so t hat proof of the former t ends to prove the latte r.”
Mo ore v. Sta te , 290 Ga. 805, 807 (725 SE2d 290) (2012) , quot ing Williams v. Sta te , 261 Ga. 640, 642 (409 SE2d 649) (1991) ). A tria l court’s ruli ng to admit evidenc e of
a similar transaction, is r eviewed u nder an abus e of discre tion standard but factual findi ngs are acc ept ed u nle ss c lear ly e rro neo us. Ree ves v. S tate , 294 Ga. 673, 676 (2) (755 SE2 d 695) (20 14) (ci tat ion omitted) . “Accor dingly, we will not dist urb the findi ngs on th e issu e of s imila rity or connection o f similar transaction evidence unless the finding is clearly erroneous.” Id. (citati on om itted). Atthe beginning of

the tri al, L. L., the victi m in the similar transaction, te stif

ied thatshe had dat ed Jordan for a f ew months toward t

he end of 2005, but

that one ti me in early 2006, Jor dan came t o her home and t old her that he misse d her. When she told him she did not want to tal k about it, Jordan put his arm across her, pinned her down, choked her, and pull ed her pant s downas L . L. struggled t o pull them back up. Jordan then grabbed L . L., pulled her to the ground, pinned her down and jerke d he r pan ts
com pletely off
. L. L . ple aded w ith him to stop, but Jordan told her the she wa s a10

whore, and [that] h e’d see me dead before anybody else would have [her] .” Jordan then raped he r viol entl y and sai d, “Jordans don’t take no for an answer.” When Jordan
saw tha t L. L .’s ro om ma tes w ere r etu rnin g, Jo rdan pulled a kn ife out of his pants, stuckit to L. L. ’s throat , andtold he r that if she tol d anyone about

what happene d, he
wo uld kill her

and that she “would never see [ her] kids a gain.” W ithin a c ouple of days of the inci dent, L. L. c ontact ed Cynthia O’Barr of

the Fran klin Coun ty Sheriff’s Office and told O’ Ba rr th at sh e ha d b een rap ed. “[T] he proper focus in a sim ilar transacti on case is onthe simil arit ies between the tw o transact ions and not the differ ences.” Reeves , 294 Ga. at 676- 677 (2) ( cit ati on omitted). Fu rther, “ [t]he ex ceptio n to th e gen eral r ule that evi dence of independe nt crimes is i nadmissible has been mos t libera lly exte nded in the area of sexual off ens es.” Johnson v. St

at e , 242 Ga. 649, 653 (3) (250 SE2d 394) (1978) (ci tat ions omitted). Here, Jordan con tends the two inciden ts were not sufficiently similar because the evidenc e did not

show t hat L. L. was raped. But, as shown above, the record beli es this assert ion. Jordanalso c ontends that the evidence regardi ng L. L. was not offered fora pro per p urp ose. B ut pr ior to the May 2009 tria l, the St ate f ile d a noti ce of i ntent to produce eviden ce of a sim ilar tr ansaction for the pur pose of s howing the3 Jord an w as tried in 2009 u nder Geo rgia’s old Evidence Code, which allowed

similar transact ion evi dence t o be admitted f or the pur

poses, among others , of showing the def

endant’ s bent of

mind or cour se of c onduc t . See M atthe ws v . State , 294 Ga. 50, 52 ( 3) (a ), n. 2 ( 751 SE2 d 78 ) ( 201 3)
. “Ge or gi a’ s n ew E vidence C ode, which applies t o trial s conducted afte r January 1, 2013, se e Ga. L.2011, p. 99, § 101, al lo ws adm issio n o f ‘ev ide nce of o the r crim es, wr on gs, or acts’ for purposes ‘inc luding, but not limited t o, proof of motive, opportuni ty, inte nt, prepar ati on, pl an, knowledge, ident ity, or abse nce of mis take or acci dent. ’ OCGA § 24–4–44 (b).” Id. 11 defendant’s course of con duct and bent of mind, “which were appropriat e purposes under Georgia law at the time of appellant ’s tri al .” Reeves , 2 94 Ga. at 675 (2) (f ootn ote omitted). 3 Jon es do es no t challe nge any othe r asp ect of the tria l cou rt’ s decis ion. Our revie w s how s that b oth th e victim in this case and the vict im in the simil ar transact ion were Jordan’s ex-girlfri ends and thatJordan call ed both of them “w ho res,” threat ened to kill b oth victi ms, rippedoff the victims’ clothing, choked b oth victims, put a kn ife to the throat

of both victi ms, assert ed that the victims or their bodies were his alon e, and sexu ally as saulte d bo th victims violently. Thus, the trial court’s factual findi ngs rega rdin g sim ilarity o f the tw o tran sactio ns a re not clearly e rroneous . The similar transaction was relevant to Jordan ’s course of conduct of

taki ng viole nt actions with his ex- girl fri ends w hen they r efuse to cont inue the rel ati onship and hi s bent of12

mind contr olling and sexu ally as saultin g the m a t knif epo int. Therefore the trial court did not abuse it s discretion in admitting the similar transaction evidence. Judgment

affirmed in part an d revers edin pa rt, an d ca se rem and ed w ith direc tion. Barnes, P. J. , and Boggs, J., concur .