Mason v. State

Banke, Chief Judge.

The defendant was convicted of criminal attempt to commit rape. The victim, a 17-year-old high school student, lived with her parents in a residential neighborhood in Athens, Georgia. While returning from a walk one evening, she noticed that someone was following her, and she began to walk more quickly toward home. She testified that as she approached her yard, this person tackled her from behind, covered her mouth, unbuttoned her pants, and tried to unzip them. She stated that the assailant loosened his grip on her in response to her assurance that she would not struggle, whereupon she bit him and began screaming for help, prompting him to flee.

Immediately after this incident took place, an unfamiliar automobile was discovered near the victim’s house, parked on the wrong side of the street with the engine still warm. This automobile, which was shown to have belonged to the defendant, was gone the following morning. At trial, the victim positively identified the defendant as her assailant. After his arrest for the offense, the defendant had jumped bail and remained a fugitive in Oklahoma for three years before being identified there and returned for trial.

The defendant admitted that he had parked his car near the victim’s home, but he asserted that at the time the offense took place he was in a park in another part of the city. He denied that he had assaulted the victim or that he had even seen her on the night in question.

The prosecuting attorney was permitted to ask the victim, over objection, what she thought the defendant’s intentions were, to which she replied, “rape.” The defendant contends that this response constituted an inadmissible conclusion and that its admission in evidence *498constitutes reversible error. Held:

1. In Bennett v. State, 165 Ga. App. 600 (1) (302 SE2d 367) (1983) , involving a state’s witness who was allowed to give her opinion of an accused burglar’s intent, this court held that “ [considering the totality of the witness’ testimony, there was no error in allowing the witness to give her opinion as to what she thought was the purpose of appellant’s illegal entry where the opinion’s basis was submitted to the jury for its evaluation and weight.” Id. at 600-601. We hold that the testimony of the victim in this case regarding what she believed her assailant’s intentions to have been was similarly admissible for what it was worth. Moreover, in the context of the other evidence presented in the case, we find it highly probable that the testimony in question did not contribute to the jury’s verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

2. The defendant also enumerates as error the trial court’s denial of his request to charge on simple battery as a lesser included offense. Since the defendant maintained at trial that he was not present and was in no way involved in the transaction, he was not entitled also to defend on the theory that he was present but participated in a less serious offense. See Jones v. State, 172 Ga. App. 347 (323 SE2d 174) (1984) ; Tuggle v. State, 149 Ga. App. 844 (6) (256 SE2d 104) (1979).

Judgment affirmed.

Been, P. J., Birdsong, P. J., Sognier, Pope, Benham, and Beasley, JJ., concur. McMurray, P. J., and Carley, J., dissent.