Reese, Judge.A jury found Raoul Lynch guilty of committing rape, kidnapping with bodily injury, two counts of aggravated assault, and burglary.[1] He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his plea in bar and in instructing the jury, that the prosecution on the charges violated his constitutional rights, that he received ineffective assistance of counsel, and that the evidence was insufficient to support his kidnapping conviction. For the reasons set forth infra, we reverse his convictions and remand this case to the trial court for a new trial solely on the rape charge. Viewed in the light most favorable to the jury’s verdict,[2] the record shows the following facts. Late on the evening of June 5, 1995, a woman (hereinafter, “the victim”) was entering her Fulton County condominium unit (“condo”) when a man grabbed her around her throat with “extreme force” and placed her in a headlock. The victim was unable to scream due to being choked. The man pushed her inside the condo while repeatedly demanding “Give me all your money” and “Where [are] we at?” Once inside the condo, the man punched her in the face several times, then pushed her toward the back of the condo and shoved her into a wall, telling her, “Don’t make a sound.” While the victim begged the man not to kill her, he pushed her into her bedroom and shoved her against a bedpost with such force that it broke in half. The man demanded her money and jewelry, and she told him to take her wallet, her car, and anything in the condo in the hope that he would leave. The man, however, forced the victim to her knees, used her belt to tie her hands behind her back, and tied a towel around her face so that she could not see and had difficulty breathing. The man picked her up, threw her on her bed, and pulled off her underwear. He grabbed her hair and raped her for a “very, very long time” in a manner the victim described as “brutal,” while she begged him to stop. The man also anally sodomized her and forced her to perform oral sex on him.During the attack, which lasted several hours, the victim was only able to get brief glimpses of the assailant because the lights were off in the condo and, during most of the attack, there was a towel covering her face. Eventually, the man got dressed and, as he was leaving the condo, told her that, if she reported the assault, she “might not make it next time.”After the man left, the victim called her parents and 911 to report the assault. She was transported by ambulance to a hospital, where she received treatment for her multiple injuries. An emergency room physician also performed a sexual assault examination on the victim and collected bodily fluids, hair clippings, and other evidence from her for a sexual assault kit that was then provided to the Fulton County Police Department. The police department, in turn, delivered the sexual assault kit, along with evidence collected from the victim’s condo, to the Georgia Bureau of Investigation’s Division of Forensic Sciences (“crime lab”) for testing. On October 4, 2001, a crime lab forensic biologist compared a profile that had been created from a sample of deoxyribonucleic acid (“DNA”) from the assailant in this case to DNA profiles that had been entered into the national Combined DNA Index System (“CODIS”) database. According to the forensic biologist, the assailant’s DNA profile matched a profile that had been created from a DNA sample obtained from the Appellant.Based upon the DNA match in the CODIS database, a Fulton County officer obtained an arrest warrant for the Appellant on October 30, 2001. However, the officer failed to enter the warrant into the state-wide Georgia Crime Information Computer (“GCIC”) system. It was not until July 2002, when another officer was assigned to the case, that the warrant was entered into the GCIC system. Although officers then obtained addresses where the Appellant had recently lived, when they attempted to locate him at those addresses, they found the residences unoccupied.[3] The Appellant was eventually arrested in New York and returned to Fulton County in August 2007. In May 2005, about four years after the Appellant’s DNA was matched with the assailant in this case on the CODIS database, the State filed an indictment charging the Appellant with rape, kidnapping with bodily injury (“kidnapping”), two counts of aggravated assault, and battery.[4] In June 2008, the State filed another indictment against the Appellant, charging him with the same crimes as in the 2005 indictment, but adding language to each count stating that his identity as the perpetrator had been established through deoxyribonucleic acid (DNA) evidence.[5] The Appellant was arraigned on the 2005 and 2008 indictments on July 18, 2008. Then, in September 2010, the State filed a third indictment that charged the Appellant with the same crimes and included the same DNA-related language as in the previous indictments, but each count also included the statement that “the identity of the accused was not known to the State until October 4, 2001[.]” In November 2010, the Appellant filed a plea in bar challenging the validity of the indictments, arguing that the 2005 indictment was fatally defective because it was filed outside of the applicable statute of limitation periods and did not allege any tolling provisions or exceptions to the running of the statutes of limitation. He also argued that, because the 2005 indictment was fatally defective, the 2008 and 2010 indictments were impermissible superseding indictments that could not relate back to the invalid 2005 indictment as a matter of law. According to the Appellant, because he could not be tried on an invalid indictment, the charges against him had to be dismissed.The trial court denied the plea in bar, concluding that the State had timely filed the 2005 indictment and that the 2005 indictment was still pending at the time the State filed the 2008 and 2010 indictments. The court ruled, therefore, that the 2008 and 2010 indictments were valid superseding indictments because they related back to the 2005 indictment. The court also found that, because the Appellant failed to file a demurrer or plea in bar challenging the validity of the 2005 and 2008 indictments within ten days after arraignment on those indictments, he had waived his challenge to the validity of those indictments.The case proceeded to trial and, in April 2011, a jury found the Appellant guilty of rape, kidnapping, two counts of aggravated assault, and burglary. The trial court denied the Appellant’s motion for new trial, and this appeal followed. On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[6] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.[7]
“The standard of Jackson v. Virginia,[[8]] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged.”[9] With these guiding principles in mind, we turn now to the Appellant’s specific claims of error. 1. As an initial matter, we must address the Appellant’s contention that the trial court erred in applying the 1996 amendment to former OCGA § 17-3-1 (b),[10] which extended the statute of limitation period for rape from seven to fifteen years,[11] to the 1995 rape in this case, arguing that it constituted an unconstitutional retroactive application of the amendment. We disagree.(a) Both the federal and state constitutions prohibit the enactment of an ex post facto law.[12] “To determine whether a penal statute is an ex post facto law, we employ a three-step analysis: First, we ask whether the law applies retrospectively. If it does not, our inquiry is at an end. A penal statute is retrospective if it alters the consequences for crimes committed prior to its enactment.”[13] Such consequences include, among other things, the infliction of a greater punishment than was permitted by the law in effect at the time of the commission of the offense, the subsequent proscription of an act which was not a crime when done, the alteration of the quality or degree of the charge, the requirement of less or different evidence than was necessary at the time of the violation, and the deprivation of any substantial right or immunity possessed at the time the defendant committed the act.[14]
