Moore v

State, 279 Ga. App. 105, 630 S.E.2d 557 (2006). Evidence was sufficient to support a conviction of aggravated child molestation since the alleged child victim testified that when the child was five-years-old, defendant ‘‘put his private in my mouth and peed in it, and made me swallow it,’’ since, among other witnesses, the child’s parent and step-parent testified about what the child told them about the incident, since a detective testified about an interview with the child about the incident, and since the state introduced a videotape of the interview into evidence and played it to the jury. Tyler v. State, 279 Ga. App. 809, 632 S.E.2d 716 (2006), cert. denied, No. S06C1818, 2006 Ga. LEXIS 810 (Ga. 2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007). Sufficient evidence supported the defendant’s convictions of aggravated child molestation under O.C.G.A. § 16-6-4(c), attempted aggravated sodomy under O.C.G.A. §§ 16-4-1 and 16-6-2(a), and statutory rape under O.C.G.A. § 16-6-3(a); the victim testified that the defendant put the defendant’s privates inside the victim’s privates and attempted to put the defendant’s privates in the victim’s behind, and the nurse practitioner testified that the physical examination of the victim indicated injuries consistent with the victim’s testimony. Anderson v. State, 282 Ga. App. 58, 637 S.E.2d 790 (2006), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007). Evidence supported a defendant’s conviction for aggravated sodomy as a showing of penetration was not required to 16-6-2 establish sodomy and: (1) an eight-year-old child (child one) told child one’s parent that the defendant touched child one ‘‘on the front down below’’; (2) a 10-year-old child (child two) told child two’s parent that the defendant ‘‘tried to put (the defendant’s) thing in my butt’’; (3) child one described acts of oral and anal sodomy to an investigator and nodded affirmatively at trial when asked if the defendant had touched child one’s penis with the defendant’s mouth; (4) child one indicated that the defendant had touched child one’s ‘‘behind’’ with the defendant’s ‘‘private part’’; and (5) child two testified that the defendant touched child two’s ‘‘behind’’ with the defendant’s private part, and that the defendant touched child two’s private part with the defendant’s mouth. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006). Evidence sufficient for conviction of sodomy of minor. — Defendant’s aggravated child molestation and aggravated sodomy convictions were upheld on appeal as supported by sufficient evidence including: (1) the testimony from both victims, which was corroborated by an investigator and a treating doctor; and (2) similar transaction evidence of the defendant’s oral and anal molestation of other minor siblings, which was introduced for the purpose of showing a course of conduct, intent, and bent of mind toward sexual behavior with young relatives, and not to impugn the defendant’s character. Chauncey v. State, 283 Ga. App. 217, 641 S.E.2d 229 (2007). Evidence sufficient for conviction of sodomy of minor. — Because sufficient direct evidence was presented via the victim’s testimony that the defendant improperly touched and digitally penetrated the victim’s vagina, convictions upon charges of aggravated sodomy, aggravated child molestation, and other crimes arising from that contact were upheld on appeal; further, any error related to the admission of the victim’s videotaped statement was harmless, as such statement would have been admissible as res gestae or to prove the defendant’s lustful disposition. Morrow v. State, 284 Ga. App. 297, 643 S.E.2d 808 (2007). On appeal from convictions for two 1105 Children as Victims (Cont’d) counts of child molestation and two counts of aggravated sodomy, no reason for reversal was found because: (1) sufficient evidence was presented in support of the same, making the trial court’s denial of an acquittal proper; (2) the time that counsel had to prepare for trial was adequate, thus diminishing the need for a continuance; (3) the defendant’s statement to police was not made upon a promise of reward or hope of benefit; and (4) the defendant failed to show that the outcome of the trial would have been different but for counsel’s alleged deficiencies. Robbins v. State, 290 Ga. App. 323, 659 S.E.2d 628 (2008). Evidence sufficient for conviction of sodomy of minor. — Trial court properly denied a defendant’s motion for new trial on the ground that there was insufficient evidence to prove aggravated sodomy since the only evidence of the victim performing oral sodomy upon the defendant came from the uncorroborated testimony of the victim’s parent, who was an accomplice to the sexual abuse and because there was insufficient evidence of force. To the contrary, the victim’s testimony as to the sexual abuse committed by the defendant sufficiently corroborated the testimony of the victim’s parent, and the testimony of the victim that the defendant kept multiple guns around the outbuilding where the trio lived and that the defendant had repeatedly threatened to shoot the victim if the victim did not engage in the sexual acts was sufficient to prove the element of force. Driggers v. State, 295 Ga. App. 711, 673 S.E.2d 95 (2009). Evidence sufficient for conviction of sodomy of minor. — Evidence was sufficient to support convictions of child molestation, O.C.G.A. § 16-6-4(a), aggravated child molestation, O.C.G.A. § 16-6-4(c), and sodomy, O.C.G.A. § 16-6-2, because, in addition to the victim’s testimony that the defendant had engaged in sexual intercourse and sodomy with the victim, there was physical evidence that supported the victim’s testimony that the victim had been abused; the jury was authorized to believe the 16-6-2 testimony of the victim as well as the expert witness who testified on behalf of the state. Roberts v. State, 297 Ga. App. 672, 678 S.E.2d 137 (2009). Conviction of aggravated sodomy and incest. — Testimony that the victim physically resisted the defendant’s sexual advances to no avail was sufficient to support the defendant’s rape and aggravated sodomy convictions; moreover, because sufficient evidence was presented that the defendant was the victim’s biological and/or legal father, sufficient evidence supported the defendant’s incest conviction as well. Williams v. State, 284 Ga. App. 255, 643 S.E.2d 749 (2007). Eleven year old victim’s testimony sufficient. — Testimony of an 11-year-old child that the defendant had sodomized the child on several occasions was sufficient by itself to convict the defendant of sodomy, O.C.G.A. § 16-6-2(a)(1), as it was the jury’s role to resolve any inconsistencies in the child’s testimony or conflicts between the child’s testimony and that of others. Terry v. State, 293 Ga. App. 455, 667 S.E.2d 109 (2008). Testimony of eight year old victim sufficient. — With regard to a defendant’s conviction for aggravated sodomy of an eight-year-old child, the evidence was sufficient to support the conviction based on the testimony of the victim alone. The victim had positively identified the defendant as the person who forced the victim to perform oral sex while the victim was playing alone in a vacant lot, and it was wholly within the province of the jury to believe the victim’s testimony over the defendant’s alibi testimony that the defendant was out-of-state at the time the alleged incident occurred. Kelley v. State, 295 Ga. App. 663, 673 S.E.2d 63 (2009), cert. denied, No. S09C0879, 2009 Ga. LEXIS 256 (Ga. 2009). Child waiting two years to disclose abuse. — Since the defendant did not dispute that the alleged sodomy occurred and the evidence showed that the victim told the victim’s mother about the act when the victim was 11 years old, two years after the act occurred, and the victim told a clinical psychologist the act occurred when the victim was eight or nine, the evidence was sufficient to sup- 1106 port the defendant’s conviction for aggravated sodomy. Gerbert v. State, 339 Ga. App. 164, 793 S.E.2d 131 (2016). Evidence insufficient for conviction of sodomy of minor. — Sufficient evidence did not exist to convict a defendant of aggravated sodomy under O.C.G.A. § 16-6-2(a)(1) because no evidence was submitted that the defendant was present and intentionally aided and abetted the minor victim’s father in making the victim put the victim’s mouth on the father’s penis. Mote v. State, 297 Ga. App. 13, 676 S.E.2d 379 (2009). Evidence insufficient for conviction. — Sufficient evidence did not support the conclusion that the prisoner committed aggravated sodomy against the first victim as there was no express testimony that the prisoner’s penis touched the victim’s anus; moreover, no rational juror could have drawn an inference from the testimony actually presented that the necessary contact occurred because the factual elements necessary for proof of aggravated sodomy in the form of penile-anal contact, as required by O.C.G.A. § 16-6-2(a), could not be inferred from either the penile-oral contact, or the penile-vaginal penetration, or the oral-anal contact that did occur. Green v. Nelson, 595 F.3d 1245 (11th Cir.), cert. denied, U.S. , 131 S. Ct. 827, 178 L. Ed. 2d 564 (2010). Evidence of force against minor victim necessary for conviction. — Although it was not necessary for the state to prove that the nine-year-old victim did not consent to the acts complained of, it was necessary for the state to prove that the defendant used force to commit the acts of sodomy, and where the state failed to introduce such evidence of force, the evidence was not sufficient to support the aggravated sodomy conviction. Hines v. State, 173 Ga. App. 657, 327 S.E.2d 786 (1985). Force is a separate essential element that the state is required to prove to obtain a conviction for aggravated sodomy against a victim under the age of consent. Brewer v. State, 271 Ga. 605, 523 S.E.2d 18 (1999), reversing Brewer v. State, 236 Ga. App. 546, 512 S.E.2d 30 (1999) and overruling Cooper v. State, 256 Ga. 631, 16-6-2 352 S.E.2d 382 (1987). Evidence of physical force against five year old not necessary. — A five year old child cannot consent to any sexual act and sexual acts directed to such a child are, in law, forcible and against the will. Cooper v. State, 256 Ga. 631, 352 S.E.2d 382 (1987). Although a court cannot presume force merely because victim of aggravated sodomy is underage, the amount of evidence necessary to prove force against a child is minimal; even if the acts occurred after the victim reached age ten; the evidence supported defendant’s aggravated sodomy convictions because, among other things, the victim testified that the victim did not want to engage in oral sex, that defendant made the victim do it by pushing the victim’s head onto the defendant’s private part, that the victim resisted when the defendant pushed the victim’s head down, and when the victim did not do what defendant asked, the defendant slapped the victim. Henry v. State, 274 Ga. App. 139, 616 S.E.2d 883 (2005). Force was proven in a case involving victims five and ten years of age by evidence that defendant used physical force upon the children, used violence against and threatened their mother in their presence, and intimidated, coerced and threatened them in a manner sufficient to instill in them a reasonable apprehension of bodily harm, violence or other dangerous consequences if they did not comply with his demands. Patterson v. State, 242 Ga. App. 885, 531 S.E.2d 759 (2000). Minor’s lack of resistance induced by fear. — There was sufficient evidence of force for an aggravated sodomy conviction; the ten-year-old victim’s testimony that she was scared and that she wanted the defendant to stop established that her lack of resistance was induced by fear, and the defendant’s pulling down the victim’s pants and underwear while she slept was some evidence of force. Boileau v. State, 285 Ga. App. 221, 645 S.E.2d 577 (2007). Lack of resistance, induced by fear, is not legally cognizable consent but is force; thus, evidence that defendant’s daughter did not resist due to reasonable fear was sufficient to satisfy the force 1107 Children as Victims (Cont’d) element of aggravated sodomy. Ingram v. State, 211 Ga. App. 252, 438 S.E.2d 708 (1993). Severance of offenses registration requirement, sodomy, and child molestation. — Defendant’s motion to sever the failure to register as a sex offender counts under former O.C.G.A. § 42-1-12 from the remaining aggravated sodomy and child molestation counts was properly denied as: (1) the defendant was not entitled to severance as a matter of right since the charges involved a series of acts which were connected together; (2) the case was not so complex as to impair the jury’s ability to distinguish the evidence and to apply the law intelligently to the counts as joined; and (3) the failure to sever the failure to register as a sex offender counts was proper, even applying an analogy to cases involving possession of a firearm by a convicted felon, as the failure to report charges were legally material to the crimes against two children because the failure constituted evasive conduct that was circumstantial evidence of guilt and evidence of the conduct underlying the defendant’s conviction of a sex offense in North Carolina was admissible as a similar transaction. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006). Enticing child for indecent purposes not included in aggravated sodomy. — Enticing a child for indecent purposes, in violation of O.C.G.A. § 16-6-5, is not included in offense of aggravated sodomy prohibited by O.C.G.A. § 16-6-2; each of these offenses involves proof of distinct essential elements. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981). Enticing a child for indecent purposes, unlike offense of aggravated sodomy, includes element of asportation. Dennis v. State, 158 Ga. App. 142, 279 S.E.2d 275 (1981). Child molestation not lesser included offense. — O.C.G.A. § 16-6-4(a) (child molestation) was not a lesser included offense of aggravated sodomy, either as a matter of law, under either O.C.G.A. § 16-1-6(2) or O.C.G.A. § 16-1-7(a), or as a matter of fact. Hill v. 16-6-2 State, 183 Ga. App. 654, 360 S.E.2d 4 (1987). Offense of aggravated sodomy did not factually merge into the offense of child molestation since one of the offenses was established by proof of the same or less than all the facts required to prove the other. LeGallienne v. State, 180 Ga. App. 108, 348 S.E.2d 471 (1986). Aggravated sodomy differs from rape and child molestation. — Jury’s verdict of not guilty of rape was not repugnant to and inconsistent with the verdicts of guilty for aggravated sodomy and child molestation. The elements of each of the three crimes charged are different, and the conduct related to each, as evidenced in this case, was also different, distinct, and separate. Hill v. State, 183 Ga. App. 654, 360 S.E.2d 4 (1987). Because the record contained sufficient evidence of multiple acts committed against the victim by the defendant for the trier of fact to find the defendant guilty beyond a reasonable doubt of both aggravated child molestation and aggravated sodomy, the offenses did not merge as a matter of law or fact; thus, the evidence supporting one count was not ‘‘used up’’ in proving the other count. Forbes v. State, 284 Ga. App. 520, 644 S.E.2d 345 (2007). Jury charge regarding victim’s age. — Trial judge correctly charged the jury that the element of ‘‘against the will,’’ or consent, was automatically shown by the victim’s age, in a prosecution of a defendant charged with aggravated sodomy and child molestation of defendant’s 11-year-old niece. Miles v. State, 201 Ga. App. 568, 411 S.E.2d 566 (1991). Consent instruction adequate. — Trial court did not err by failing to charge the jury with consent because, by charging the jury as to the elements of aggravated sodomy, including the requirement that the jury find a lack of consent, the trial court substantially covered the defense. Walker v. State, 349 Ga. App. 188, 825 S.E.2d 578 (2019). Instruction on simple sodomy as lesser included offense of the aggravated sodomy charged was not required where the victim’s age obviated any element of consent and the victim testified 1108 she feared bodily harm if she did not accede to defendant’s wishes. LaPan v. State, 167 Ga. App. 250, 305 S.E.2d 858 (1983). Charge on child molestation held inappropriate. — In a trial for aggravated sodomy, where the victim was a five year old child, the trial court’s refusal to charge on request, as a lesser-included offense, the elements of child molestation as defined by O.C.G.A. § 16-6-4, was not error; since under the evidence, such a charge would have been inappropriate, as the victim testified that defendant did the act, and defendant denied it. Cooper v. State, 256 Ga. 631, 352 S.E.2d 382 (1987). Charge of both sodomy and child molestation. — When the evidence showed that, at least as to two of the three victims, the defendant committed the illegal act charged in each pair of counts aggravated sodomy and aggravated child molestation on more than one occasion, but the indictment did not charge the defendant with separate and distinct acts but merely charged the defendant with two different crimes for the same described act, the defendant should have been sentenced for only one of the two offenses for which the defendant was convicted as to each of the three victims. This case is distinguishable from those cases in which the court has upheld the conviction and sentencing for separate crimes and rejected the defendant’s claim of merger because the indictment charged the defendant with multiple, distinct offenses. Lewis v. State, 205 Ga. App. 29, 421 S.E.2d 339 (1992). Defendant’s aggravated child molestation charge merged with the aggravated sodomy charge, as both were based on the same act of sodomy; while defendant committed multiple acts of anal sodomy against one of the victims, the indictment did not charge the defendant with separate and distinct acts but merely charged the defendant with two different crimes for the same described act. Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004). Testimony of child-victim’s mother, regarding talk uttered by a child in sleep, was admissible as original evidence at the defendant’s trial for aggra- 16-6-2 vated sodomy. Godfrey v. State, 187 Ga. App. 319, 370 S.E.2d 183 (1988). Circumstantial evidence of force through intimidation was sufficient to support an aggravated sodomy conviction after a child victim, age 17 at the time in question, testified that the victim ‘‘freaked out’’ when defendant performed oral sex on the victim, that the victim did not want the oral sex to happen, that the victim did tell the defendant to stop since the victim trusted defendant like a father figure, and that the victim could not have stopped defendant because of defendant’s size. Schneider v. State, 267 Ga. App. 508, 603 S.E.2d 663 (2004). Evidence sufficient for aggravated child molestation. — Evidence was sufficient to support defendant’s conviction for aggravated child molestation, which involved an act of sodomy, by placing the defendant’s genitals in the child’s anus because the child testified that defendant ‘‘put his private in [the child’s] butt.’’ Neal v. State, 271 Ga. App. 283, 609 S.E.2d 204 (2005). Aggravated child molestation based on sodomy. — Evidence supported defendant’s conviction for aggravated child molestation and aggravated sexual battery because: (1) the 11-year-old victim testified that defendant put the defendant’s hand on the child’s private part, put the defendant’s finger in the child’s private part, put the defendant’s mouth on the child’s private part, and put the child’s mouth on the defendant’s private part, and that when the child put the child’s mouth on the defendant’s private part, ‘‘he came, whatever you call it’’; (2) when the prosecutor asked the victim whether by that the child meant that ‘‘stuff came out of his private part,’’ the child responded yes; and (3) in a videotaped pretrial interview, the victim explained that the child was using the term ‘‘private part’’ to mean penis or vagina. Maddox v. State, 275 Ga. App. 869, 622 S.E.2d 80 (2005). Aggravated sodomy in violation of O.C.G.A. § 16-6-2 count of the indictment should have merged into the aggravated child molestation in violation of O.C.G.A. § 16-6-4 count, as both alleged that the defendant had the victim perform oral sex 1109 Children as Victims (Cont’d) on the defendant. Howard v. State, 281 Ga. App. 797, 637 S.E.2d 448 (2006). Sentence Cruel and unusual punishment. — Habeas court properly ruled that an inmate’s sentence of 10 years in prison for having consensual oral sex with a 15-year-old when the inmate was only 17 years old constituted cruel and unusual punishment in light of the 2006 amendments to O.C.G.A. §§ 16-6-4 and 42-1-12. Humphrey v. Wilson, 282 Ga. 520, 652 S.E.2d 501 (2007). Statute does not provide for two maximum sentences. — Although O.C.G.A. § 16-6-2 vests broad discretion in the sentencing judge, contrary to the defendant’s contentions, the statute does not provide two maximum sentences. Nihart v. State, 227 Ga. App. 272, 488 S.E.2d 740 (1997). Ten-year sentence upheld. — Since the legislature has provided for a maximum sentence of confinement of 20 years, where the trial court sentenced defendant to ten years confinement followed by probation for repeated acts of sodomy committed against a minor, the sentence did not shock the conscience. Gordon v. State, 257 Ga. 439, 360 S.E.2d 253 (1987); Ray v. State, 259 Ga. 868, 389 S.E.2d 326 (1990), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003). O.C.G.A. § 16-6-2 has never provided for the death penalty. Waters v. 16-6-2 State, 248 Ga. 355, 283 S.E.2d 238 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1983). Twenty-year maximum sentence imposed for aggravated sodomy did not shock the conscience, and therefore did not impose cruel and unusual punishment. Rodgers v. State, 261 Ga. 33, 401 S.E.2d 735 (1991). Court must impose maximum sentence. — Because the defendant was a three-time recidivist and because the maximum sentence for aggravated sodomy was life in prison, the trial court correctly imposed sentence against the defendant to serve life in prison without the possibility of parole. Bharadia v. State, 282 Ga. App. 556, 639 S.E.2d 545 (2006), cert. denied, No. S07C0522, 2007 Ga. LEXIS 222 (Ga. 2007). Counsel ineffective for rejecting plea bargain in sodomy case. — In defendant’s sodomy case, in which O.C.G.A. § 16-6-2(b)(2) provided for a mandatory sentence of imprisonment for life or a split sentence that was a term of imprisonment for not less than 25 years, following probation for life, counsel was ineffective in actively lobbying the defendant’s client to reject a plea bargain under which the sodomy charge would have been dropped and the defendant would have received a 12-year sentence with credit for time served and the balance on probation. State v. Lexie, 331 Ga. App. 400, 771 S.E.2d 97 (2015), cert. denied, No. S15C1136, 2015 Ga. LEXIS 422 (Ga. 2015).