A jury found Barry Birdsong guilty of two counts of aggravated assault, one count of simple battery, and one count of possession of a firearm during the commission of a crime. The trial court denied his motion for new trial. On appeal, Birdsong contends that during the charge to the jury at the close of the case, the trial court erred by giving a curative instruction concerning witness testimony about the victim’s sexual history. Discerning no error, we affirm. The record reflects that after Birdsong’s alleged physical and sexual attack of his estranged wife, a grand jury indicted him on one count of kidnapping with bodily injury, one count of rape, three counts of aggravated assault, one count of aggravated battery, one count of making terroristic threats, one count of possession of a firearm during the commission of a crime, and one count of family violence battery. The case was originally brought to trial in May of 2008. However, during the cross-examination of the victim, defense counsel specifically inquired about her sexual activities after the alleged rape, leading the trial court to grant a mistrial. Before the case was brought to trial a second time, Birdsong filed a plea in bar based upon a claim of double jeopardy. The trial court denied the plea, and on appeal to this Court, we affirmed, concluding that defense counsel’s question to the victim regarding her sexual activities violated the Rape Shield Statute, OCGA § 24-2-3, and created a manifest necessity for the mistrial. See Birdsong v. State , 298 Ga. App. 322, 325-327 2 680 SE2d 159 2009.
The case was brought to trial for a second time in February of 2010. The victim testified that she and Birdsong had been married for several years but had separated in October of 2006. On January 1, 2007, she went to Birdsong’s house to retrieve their son’s video game system. According to the victim, after she entered the house, Birdsong demanded that she move back in with him, but she responded that she was not returning and was planning on getting a divorce. The victim testified that Birdsong then slapped her in the face and stated that she was going to come home “or else.” She related that when she asked Birdsong what he meant by “or else,” he began grabbing and clawing at her neck and face, dragged her up the stairs, down the hall, and into the master bedroom on the upper level of the house. The victim further testified that once in the bedroom, Birdsong threw her on the bed and began choking her; retrieved a shotgun and poked her in the chest and stomach with it while threatening to kill her; cracked one of her teeth by striking her in the mouth with the shotgun; and forced her to have sexual intercourse with him. According to the victim, after Birdsong forced her to have sexual intercourse, he released her but warned her that she had one hour to retrieve her belongings and move back into the home.
