Opinion
75841.
DECIDED FEBRUARY 4, 1988.
Rape. Richmond Superior Court. Before Judge Fleming.
O. L. Collins, for appellant.
Sam B. Sibley, Jr., District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
The appellant was tried for kidnapping, armed robbery, and rape but was found guilty only of rape. On appeal, his primary contention is that his acquittal of the kidnapping charge was inconsistent with and repugnant to his conviction of the rape charge. While the appellant recognizes that the inconsistent verdict rule was abolished in criminal cases in Milam v. State, 255 Ga. 560 (2) ( 341 S.E.2d 216) (1986), he contends that the Milam decision should not be given retroactive effect. Held:
1. Pretermitting whether the Milam decision should be given retroactive effect, it is clear that the jury's verdicts in the present case were not inconsistent. "`The jury is entitled to believe a part of the testimony of a witness and disbelieve other parts.' (Cit.) `The determinative factor in judging whether jury findings are inconsistent is "whether the acquittal of one charge necessarily includes a finding against a fact that is essential to conviction for the other charge." (Cit.)'" Hines v. State, 254 Ga. 386, 387 ( 329 S.E.2d 479) (1985). Accord Cowart v. State, 177 Ga. App. 107 ( 338 S.E.2d 534) (1985).
The appellant argues that by acquitting him of the kidnapping charge, the jury necessarily determined that he had not held the victim against her will and that this determination cannot be reconciled with a determination that he had intercourse with her "forcibly, and against her will." OCGA § 16-6-1 (a). This argument, however, assumes a definition of the offense of kidnapping which is incomplete and therefore erroneous. "A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will." OCGA § 16-5-40 (a). (Emphasis supplied.) Obviously, the jury in the present case was not required to find that the appellant had abducted the victim in order to find that he had had intercourse with her against her will. Consequently, the verdicts were not in irreconcilable conflict.
2. The evidence, construed most favorably towards the verdict, was sufficient to have enabled a rational trier of fact to find the appellant guilty of rape beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979).
Judgment affirmed. Birdsong, C. J., and Beasley, J., concur.