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motion for new trial, pointing out that trial court couldn’t grant directed verdict following conviction. Supreme Court notes in dicta that grant of defendant’s directed verdict motion was improper, but law provides State no power to move for new trial. “There is no provision in Georgia law authorizing a trial court to entertain a motion for judgment of not guilty notwithstanding a verdict of guilty in a criminal case. Wilson v. State, 215 Ga. 775(1), 113 S.E.2d 607 (1960). Since Wilson, the legislature created a statutory right to seek a directed verdict of acquittal in a criminal case during trial, codified as OCGA § 17-9-1; however, that statute does not apply after the entry of a verdict. Although this issue is not presently before the Court, we observe that a judgment which is ‘void for any other cause, is a mere nullity and may be held so in any court where it becomes material to the interest of the parties to consider it.’ OCGA § 17-9-4.” N. DNA TESTING Bharadia v. State, 297 Ga. 567, 774 S.E.2d 90 (June 29, 2015). Affirming 326 Ga.App. 827, 755 S.E.2d 273 (2014). Following defendant’s conviction for aggravated sodomy and related offenses, trial court properly denied extraordinary motion for new trial; defendant failed to show due diligence in obtaining alleged new evidence. New evidence here: DNA testing and CODIS search for match of that testing, based on biological matter on gloves worn by victim’s assailant. CODIS search matched the biological matter to co-defendant/State’s witness Flint, not Bharadia. Notes that trial court’s order here for post-trial testing of co-defendant, and for CODIS database search, “was not properly a request for DNA testing made pursuant to OCGA § 5–5–41(c), nor was it granted pursuant to that statute. Instead, this request was in the nature of post-trial discovery,[cit] and neither the order granting the CODIS database search nor the order granting the confirmation testing of the co-defendant's DNA indicates that it was based upon the statute.” “A post-trial motion for DNA testing pursuant to OCGA § 5–5–41(c)(3)(A) requires the person convicted of a felony and desiring such testing to show that ‘[e]vidence that potentially contains deoxyribonucleic acid (DNA) was obtained in relation to the crime and subsequent indictment, which resulted in his or her conviction.’” Bradberry v. State, 315 Ga.App. 434, 727 S.E.2d 208 (April 6, 2012). Defendant couldn’t appeal denial of his post- conviction motion for forensic testing. Although defendant characterized the testing he sought as a “DNA sample,” he actually sought testing of a semen sample for the presence of condom lubricants that he contended would disprove the victim’s version of events. “Thus, the order appealed is not one denying a stand-alone motion for DNA testing under OCGA § 5–5–41(c); therefore, it is not directly appealable under that Code section and the case law interpreting it.” No other provision of law authorizes an appeal from such a ruling. Wright v. State, 310 Ga.App. 80, 712 S.E.2d 105 (June 16, 2011). Following defendant’s convictions for rape, kidnapping and related offenses, trial court properly denied extraordinary motion for new trial. After DNA testing excluded Wright as “sperm donor” in rape of one victim, trial court granted motion as to that victim but denied motion as to other victims. Contrary to defendant’s argument, Court of Appeals holds that the new evidence doesn’t “exonerate” defendant even as to the one victim, much less the other three. “The trial court did not make that ruling. The court held that the new evidence is so material that its introduction would probably produce a different result on the counts pertaining to K.W. The new evidence shows only that Wright was not a donor of the semen found in the swabbings obtained from K.W. Ejaculation, of course, is not an essential element of rape.” Evidence here “permits a strong inference that Wright was careful not to ejaculate when he raped the victims,” while his co-defendant was not. “Accordingly, the new DNA evidence may warrant a new trial as to K.W., but it does compel the conclusion that a different verdict on the counts pertaining to the other victims would probably have resulted had it been introduced.” Howard v. State, 307 Ga.App. 772, 706 S.E.2d 136 (February 9, 2011). Following defendant’s 1989 convictions for burglary and rape, trial court properly denied defendant’s motion for DNA testing, based on case agent’s testimony that “ any testable evidence from Howard's trial had since been destroyed. There was no evidence showing otherwise, nor was there evidence of bad faith on the part of the State. Under these circumstances, Howard failed to meet the statutory requirements, see OCGA § 5-5-41(c)(7)(A), and the trial court did not err in denying Howard's motion for DNA testing.” Pate v. State, 292 Ga.App. 815, 665 S.E.2d 907 (July 18, 2008). Trial court erred in denying defendant’s post-conviction motion for new trial with DNA testing of evidence pursuant to OCGA § 5-5-41(c), without setting out in the order “the rationale for the grant or denial of the motion” as required by subsection (c)(12). Williams v. State, 289 Ga.App. 856, 658 S.E.2d 446 (February 29, 2008). Trial court properly denied defendant’s motion for post-conviction DNA testing; defendant’s identity was not an issue at rape trial. Rather, defendant contended that sex with victim was consensual. That “[t]he identity of the perpetrator was, or should have been, a significant issue in the case,” is a critical element of a motion for testing under OCGA § 5-5-41(c)(3)(D).
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