A Clayton County jury found Alexander Dawson guilty of rape, OCGA § 16-6-1. He appeals from the order denying his motion for new trial, contending his conviction was barred by double jeopardy and alleging several evidentiary errors. Viewed in the light most favorable to the jury’s verdict,1 the record reveals the following relevant facts. On the morning of December 10, 1998, Dawson kicked his eight-months-pregnant ex-girlfriend down a flight of stairs. The victim lay injured on the floor for twenty minutes, then went back upstairs to her bedroom, complaining of stomach pain. Instead of taking her to the hospital, as she requested, Dawson pressed her back on the bed and made her have sexual intercourse with him. She repeatedly told him she did not want to have sex, but she didn’t fight because she was in pain and afraid he would hurt her again. After the rape, the victim drove herself to the hospital where she made an immediate outcry to both a nurse and a detective. An examination of the victim’s vagina revealed the presence of sperm. The victim testified that Dawson had been violent to her in the past; he hit her, choked her, and “busted” her car’s windshield.
1. Dawson contends his rape conviction violates the constitutional prohibition against double jeopardy. Dawson was previously tried for rape, battery, and criminal trespass. The jury acquitted him of family battery for pushing the victim down the stairs, convicted him of criminal trespass, and the trial court declared a mistrial on the rape count. Dawson contends the factual allegations that supported his battery “could not be used at a second trial to serve as an element of rape,” arguing collateral estoppel. However, a review of the transcript and the indictment plainly shows that the facts supporting the battery being kicked down the stairs were separate and distinct in both space and time from the facts showing the force used in the rape pressing her to the bed; fear; implicit threat of future violence. Because the facts central to proving the rape conviction in the instant trial were not determined in the former trial, the State was not barred from re-prosecuting Dawson. See e.g., Ashe v. Swenson , 397 U. S. 436, 444 90 SC 1189, 25 LE2d 469 1970; Phillips v. State , 272 Ga. 840, 842 537 SE2d 63 2000; State v. Tate , 136 Ga. App. 181, 186 220 SE2d 741 1975.
