A Clayton County jury found Walter Usher guilty beyond a reasonable doubt of aggravated assault against a person 65 years of age or older, OCGA § 16-5-21 a 1 assault with intent to rape, d; burglary, OCGA § 16-7-1; robbery, OCGA § 16-8-40; theft by taking, OCGA § 16-8-2; and battery, OCGA § 16-5-23.1. Following the denial of his motion for a new trial, Usher appeals, contending, inter alia, that the trial court erred in admitting evidence of prior bad acts to prove identity and that the evidence was insufficient to prove that the victim was at least 65 years of age, as charged in the indictment. For the reasons that follow, we reverse. Viewed in the light most favorable to the jury’s verdict,1 the evidence shows the following. On April 5, 2002, the 91-year-old victim, who lived alone, went to sleep around 10:00 p.m. Sometime after 2:00 a.m. on April 6, someone rang her doorbell, and the victim got up and turned on the light. A man entered the house and came into her bedroom. The assailant struggled with the victim, told her to get back into bed, forcefully pushed her back on the bed, pulled down his pants, and tried to lie on the victim. Believing he planned to rape her, the victim said, “You’re too good looking a man to be in here trying to get an old woman like me. . . . Do you want me to get you a younger lady” The assailant ignored the question and repeatedly slapped the victim in the face. Changing tactics, the victim asked if the assailant wanted some money. The assailant pulled his pants up and asked where her money was. The victim gave him money from her purse. Then they went together into the living room, and the victim gave him money she kept there in a can. Taking the money, the assailant left the victim’s house. After the attack, the victim’s face was lacerated, extensively bruised, and swollen and she had defensive wounds on her hand and arm.
Six days later, a detective asked the victim if she could identify her assailant in a six-person photographic spread that included Usher, who lived about a mile from the victim’s house. The victim immediately selected Usher’s picture and, in the detective’s opinion, seemed “very certain” of her identification. The victim also identified Usher at trial. Although the victim was not wearing her glasses during the attack, she testified that she had seen him clearly.
