Abercrombie v. State

Any error in the trial court's jury instruction on rape, which may have created an impermissible mandatory presumption as to the force element, was harmless, in light of the otherwise overwhelming evidence of the defendant's guilt.

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After a jury trial, Rodney Abercrombie was convicted of kidnapping, rape, aggravated assault and two counts of cruelty to children. Abercrombie appeals, challenging a portion of the jury charge on the offense of rape and a ruling as to the cross-examination of a witness. The challenges are without merit, and we therefore affirm the convictions. 1. Abercrombie claims that the trial court, in charging the jury on the offense of rape, erroneously included a portion of the suggested pattern jury instructions which provided that, “in cases of incapacity to consent, the element of force is automatically supplied by law.” Abercrombie argues that this portion of the charge created an impermissible mandatory presumption as to the element of force.1 However, even if we assume for purposes of this appeal that the charge created an impermissible presumption, such an “instruction is harmless so long as the instruction was applied to an element of the crime that was not at issue in the trial, and if the evidence of guilt is overwhelming.”2

In this case, the evidence of Abercrombie’s guilt is overwhelming. As fully recounted in a prior decision from this court affirming the convictions of co-defendant Clarence Cole, the evidence shows that Abercrombie and Cole forced the 15-year-old victim into their car, made her drink alcohol, drove her and her cousin to a secluded area, and sexually assaulted her.3 Among other things, the cousin testified that he saw Abercrombie on top of the victim with his penis in her vagina, and that she was begging him not to hurt her.4 There was also medical evidence establishing that, after the attack, the victim’s jaw was swollen, and she had bruises on her neck, arms, legs, chest and near her vagina.5

Abercrombie v. State

Any error in the trial court's jury instruction on rape, which may have created an impermissible mandatory presumption as to the force element, was harmless, in light of the otherwise overwhelming evidence of the defendant's guilt.

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