(Laws 1833, Cobb's 1851 Digest, p. 787; Code 1863, §§ 4251, 4252; Code 1868, §§ 4286, 4287; Code 1873, §§ 4352, 4353; Code 1882, §§ 4352, 4353; Penal Code 1895, §§ 382, 383; Penal Code 1910, §§ 373, 374; Code 1933, §§ 26-5901, 26-5902; Ga. L. 1949, p. 275, § 1; Code 1933, § 26-2002, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1994, p. 1959, § 7; Ga. L. 1996, p. 1115, § 2; Ga. L. 1997, p. 6, § 3; Ga. L. 2000, p. 1346, § 1; Ga. L. 2006, p. 379, § 9/HB 1059; Ga. L. 2011, p. 214, § 2/HB 503.)
Cross references.- Actions for childhood sexual abuse, § 9-3-33.1.
Affirmative defense to certain sexual crimes, § 16-3-6.
Computer pornography and child exploitation prevention, § 16-12-100.2.
Time limitation on prosecutions for crimes punishable by death or life imprisonment, § 17-3-1.
Televising testimony of child who is victim of offense under this Code section, § 17-8-55.
Visitation with minors by convicted sexual offenders while imprisoned, § 42-5-56.
Editor's notes.- Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994'."
Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:
"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and
"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."
Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act."
Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides for severability.
Ga. L. 1994, p. 1959, § 18, not codified by the General Assembly, provides: "This Act shall become effective on January 1, 1995, upon ratification by the voters of this state at the 1994 November general election of that proposed amendment to Article IV, Section II, Paragraph II of the Constitution authorizing the General Assembly to provide for mandatory minimum sentences and sentences of life without possibility of parole in certain cases and providing restrictions on the authority of the State Board of Pardons and Paroles to grant paroles.... " That amendment was ratified by the voters on November 8, 1994, so the amendment to this Code section by this Act became effective on January 1, 1995.
Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond, 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."
Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."
Law reviews.- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For survey of 1985 Eleventh Circuit cases on civil constitutional law, see 37 Merger L. Rev. 1253 (1986). For annual survey article discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006). For article, "'I'm Not Gay, M'Kay?': Should Falsely Calling Someone a Homosexual be Defamatory?," see 44 Ga. L. Rev. 739 (2010). For note, "The Crimes Against Nature," see 16 J. of Pub. L. 159 (1967). For note, "Sexual Orientation Discrimination in the Wake of Bowers v. Hardwick," see 22 Ga. L. Rev. 773 (1988). For note, "Powell v. State: The Demise of Georgia's Consensual Sodomy Statute," see 51 Mercer L. Rev. 987 (2000). For note, "'Rabbit' Hunting in the Supreme Court: The Constitutionality of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas," see 44 Ga. L. Rev. 245 (2009). For comment, "The Pursuit of Happiness (and Sexual Freedom): Lawrence v. Texas, Morality Legislation & the Sandy Springs Obscenity Statute," see 66 Mercer L. Rev. 1087 (2015).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, annotations decided prior to the amendments to the length of sentence specified in subsection (b) are included in the annotations for this Code section.
Constitutionality.
- Former Code 1933, § 26-2002 was not so vague, indefinite, and overbroad as to violate the due process and equal protection clauses of the state and federal Constitutions. Wanzer v. State, 232 Ga. 523, 207 S.E.2d 466 (1974).
O.C.G.A. § 16-6-2 did not violate an individual's fundamental right to privacy though it does not differentiate between the sex or marital status of the possible offenders and, therefore, applies equally to homosexual and heterosexual intimate relationships, where the issue of the validity of that section if used to prohibit the intimate affairs of a married heterosexual couple in the privacy of their marital bedroom was not reached because defendant, a homosexual, had failed to show that defendant's own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Gordon v. State, 257 Ga. 439, 360 S.E.2d 253 (1987).
Claim of defendant that O.C.G.A. § 16-6-2 violates due process and equal protection because it is selectively enforced against unmarried persons, and because "victims" are not prosecuted for engaging in the consensual conduct, failed where defendant did not establish the actual manner of enforcement. King v. State, 265 Ga. 440, 458 S.E.2d 98 (1995).
O.C.G.A. § 16-6-2 does not violate the right to privacy under the Georgia Constitution. Christensen v. State, 266 Ga. 474, 468 S.E.2d 188 (1996).
Insofar as it criminalizes the performance of private, unforced non-commercial acts of sexual intimacy between persons legally able to consent, the statute manifestly infringes upon a constitutional provision which guarantees to the citizens of Georgia the right of privacy. Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998).
Conviction of the defendant of sodomy for a sex act in a public, commercial place was not prohibited by Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998). Gagnon v. State, 240 Ga. App. 754, 525 S.E.2d 127 (1999).
Conduct for which defendant was convicted, even if the conduct was consensual, took place outdoors in a wooded area adjacent to a public road which was not a private place within the contemplation of the Fourth Amendment and, therefore, was not protected conduct. Mauk v. State, 242 Ga. App. 191, 529 S.E.2d 197 (2000), cert. denied, 532 U.S. 924, 121 S. Ct. 1364, 149 L. Ed. 2d 293 (2001).
Nothing in the decision in Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), holding O.C.G.A. § 16-6-2 unconstitutional to the extent it broadly criminalized private, unforced, noncommercial acts of sodomy between consenting persons legally able to give such consent, could be construed to create an exception for acts of sodomy committed by a school teacher with a student. State v. Eastwood, 243 Ga. App. 822, 535 S.E.2d 246 (2000).
Standing to contest constitutionality.
- Defendant who was sentenced to less than the maximum penalty provided by O.C.G.A. § 16-6-2 lacked standing to contest whether such maximum penalty constitutes cruel and unusual punishment. King v. State, 265 Ga. 440, 458 S.E.2d 98 (1995).
Venue.
- Incident on which a sodomy charge was based occurred about one mile from the home in Gordon County where the defendant and the victim lived, when the defendant and the victim were driving home; thus, under O.C.G.A. § 17-2-2(e), the crime was considered to have occurred in Gordon County, through which the car traveled, and the state proved venue. Prudhomme v. State, 285 Ga. App. 662, 647 S.E.2d 343 (2007).
Juvenile court properly dismissed delinquency petition since transfer hearing provisions did not apply.
- Juvenile court properly dismissed a delinquency petition without a hearing, which petition alleged that the juvenile committed aggravated sodomy, as O.C.G.A. § 15-11-30.2(f) expressly provided that the transfer hearing provisions did not apply to any proceeding within the exclusive jurisdiction of a superior court, pursuant to O.C.G.A. § 15-11-28(b)(2)(A), which included aggravated sodomy. In the Interest of N.C., 293 Ga. App. 374, 667 S.E.2d 181 (2008).
Right of privacy.
- An adult who pays a fourteen-year-old child to engage in sodomy has no right of privacy in that conduct. 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).
Solicitation of sodomy.
- Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), which struck down O.C.G.A. § 16-6-2 insofar as it applies to private, non-commercial acts between consenting adults, did not impliedly strike down O.C.G.A. § 16-6-15, the solicitation of sodomy statute. Howard v. State, 272 Ga. 242, 527 S.E.2d 194 (2000).
Victim's testimony was sufficient to sustain the defendant's conviction for solicitation of sodomy in violation of O.C.G.A. § 16-6-15(a) because the victim testified that the defendant offered to give the victim money for oral sex. Davenport v. State, 316 Ga. App. 234, 729 S.E.2d 442 (2012).
Proving discriminatory enforcement.
- When the defendant contended to having been denied equal protection of the law because officials actually enforce the sodomy law only against offending homosexuals and not against others who violate the sodomy law, the defendant did not prove the contention as the manner of enforcement of the sodomy law was not established in the record. Gordon v. State, 257 Ga. 439, 360 S.E.2d 253 (1987).
No evidence to support contention that O.C.G.A.
§ 16-6-2(a) is selectively enforced only against homosexuals. - See 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).
General character of alleged victim as homosexual is irrelevant as to whether the victim was forced against the victim's will to commit acts of sodomy. Abner v. State, 139 Ga. App. 600, 229 S.E.2d 83 (1976).
No right to privacy for commission of sodomy in public places.
- Whatever the constitutional privacy rights may be of one who engages in sodomy in private places, they do not attach to another doing the same in public places. Stover v. State, 256 Ga. 515, 350 S.E.2d 577 (1986); Smashum v. State, 261 Ga. 248, 403 S.E.2d 797 (1991).
Sodomy statute not changed. - By the enactment of the Official Code of Georgia, the General Assembly did not intend to change the sodomy statute, now O.C.G.A. § 16-6-2, to exclude as a crime the placing of one's mouth on the sexual organ of another. Porter v. State, 168 Ga. App. 703, 309 S.E.2d 919 (1983).
One who voluntarily participates in unnatural act of sexual intercourse with another is also guilty of sodomy. One who does not so participate is not guilty. Perryman v. State, 63 Ga. App. 819, 12 S.E.2d 388 (1940).
Sexual intercourse not act of sodomy.
- Defendant's conviction for aggravated child molestation was vacated because on appeal the state conceded that sexual intercourse was not an act of sodomy and, therefore, Count 6 as drawn in the indictment did not constitute the crime of aggravated child molestation and could not stand. Mosby v. State (two cases), 353 Ga. App. 744, 839 S.E.2d 237 (2020).
Penetration is not a requirement as to sodomy; all that is required is some contact. Carter v. State, 122 Ga. App. 21, 176 S.E.2d 238 (1970); Wimpey v. State, 180 Ga. App. 529, 349 S.E.2d 773 (1986); Scott v. State, 223 Ga. App. 479, 477 S.E.2d 901 (1996); Wright v. State, 259 Ga. App. 74, 576 S.E.2d 64 (2003).
As to sodomy, proof of penetration is not required. Proof that the sexual act involved the sexual organs of one and the anus of another is sufficient. Ruff v. State, 132 Ga. App. 568, 208 S.E.2d 581 (1974).
Connection between man and woman per linguam in vagina is sodomy. Carter v. State, 122 Ga. App. 21, 176 S.E.2d 238 (1970), overruled on other grounds, 271 Ga. 605 (1999).
Jury instruction on the definition of sodomy was necessary, even though sodomy was not one of the offenses charged in the indictment, since sodomy was an element of the offenses of aggravated child molestation, O.C.G.A. § 16-6-2(a), for which defendant was on trial. Ramirez v. State, 265 Ga. App. 808, 595 S.E.2d 630 (2004).
Sodomy is a lesser included offense of aggravated sodomy. Stover v. State, 256 Ga. 515, 350 S.E.2d 577 (1986).
Sodomy was not an included offense of rape.
- Trial court's failure to rule that defendant's convictions for anal and oral sodomy merged into defendant's rape conviction was not error, since each of the three offenses contained at least one element not contained in the others and cannot merge as a matter of law. Even though it is anatomically impossible for the three offenses to merge as a matter of fact, the matter was properly submitted for resolution to the jury, which resolved the matter against defendant. Johnson v. State, 195 Ga. App. 723, 394 S.E.2d 586 (1990).
Indictment sufficient.
- Sodomy indictment stating that defendant "did place his penis in the mouth of" the minor victim did not fatally vary from the evidence showing that he allowed the victim to kiss his sex organ. Turner v. State, 231 Ga. App. 747, 500 S.E.2d 628 (1998).
Defendant was properly convicted of aggravated child molestation in violation of O.C.G.A. § 16-6-4(c) because there was no fatal variance between the allegations and the proof at trial; the indictment was sufficient to put the defendant on notice that the defendant could be convicted for an act of oral sodomy involving the victim's mouth and the defendant's sex organ; the allegation that the defendant did perform an immoral and indecent act of sodomy to a child did not necessarily require that the act involve the defendant's mouth and the victim's sexual organ. Weeks v. State, 316 Ga. App. 448, 729 S.E.2d 570 (2012).
Evidence rebutting consent.
- In a prosecution for sodomy, the fact of the woman's having made complaint soon after the assault took place is admissible in evidence for the purpose of rebutting the idea that the female consented to the criminal act. Riddlehoover v. State, 153 Ga. App. 194, 264 S.E.2d 666 (1980).
No corroboration requirement.
- However beneficent it might be to require that the testimony of children of tender years be corroborated, there is no statute or decision in the state which makes such a requirement in criminal prosecutions for offenses of sodomy or taking indecent liberties with a child. Clardy v. State, 87 Ga. App. 633, 75 S.E.2d 208 (1953).
Corroboration is not required to warrant a conviction for the offenses of incest, sodomy, and child molestation, and trial court's failure to charge the jury that corroboration was required was not error. Scales v. State, 171 Ga. App. 924, 321 S.E.2d 764 (1984).
Statements of victim to mother and nurse held admissible.
- As to the victim's mother and the nurse who examined the victim, their testimony regarding statements the victim made to them, was admissible as substantive evidence of the matter asserted because the victim was under oath and subject to cross-examination about her testimony and about her out-of-court statements. Runion v. State, 180 Ga. App. 440, 349 S.E.2d 288 (1986).
Admission of evidence of sexual intercourse in sodomy prosecution.
- In sodomy prosecution, evidence of an act of sexual intercourse which took place at the same time and was a part of the same transaction with which the defendant was charged was properly admitted, where the separate acts were so connected in time and so similar in their relations that motive, intent, and state of mind could reasonably be imputed to both. McMichen v. State, 62 Ga. App. 50, 7 S.E.2d 749 (1940).
Whether the act of sodomy is "anatomically impossible" is a question of fact for determination by the jury. Wimpey v. State, 180 Ga. App. 529, 349 S.E.2d 773 (1986).
Pattern of sexual exploitation shown.
- When the evidence showed that the defendant first began having sexual relations with his stepdaughter when she was about 12 years of age and continued having sexual relations with her until she was in her seventeenth year, the pattern of sexual exploitation presented was, as a matter of law, forcible and against the will, because of the stepdaughter's age at onset, and because of her familial relationship with the defendant; the assertion that consensual sexual activity is protected by a right of privacy was inapplicable as no consent was possible. Richardson v. State, 256 Ga. 746, 353 S.E.2d 342 (1987).
Inquiry into victim's past sexual experiences was properly refused, even when a physician testified that in examining the victim it was obvious the victim had been sexually active. Worth v. State, 183 Ga. App. 68, 358 S.E.2d 251 (1987).
Exclusion of evidence of state's witness's mental illness could not be reviewed.
- In the defendant's appeal from convictions based on sex acts committed against the defendant's step-daughter, O.C.G.A. §§ 16-5-70(b),16-6-2, and16-6-4, the defendant's claim that the trial court erred in excluding evidence that the victim's grandmother, who lived with the family and insisted to the mother that the defendant was molesting the child, had been diagnosed with mental illness could not be reviewed because trial counsel did not proffer the evidence. Whitelock v. State, 349 Ga. App. 28, 825 S.E.2d 426 (2019).
Failure to present expert testimony on capacity to consent.
- In a rape and aggravated sodomy case, the trial court properly rejected the defendant's claim that trial counsel was ineffective for not introducing evidence on the adult victim's mental capacity to consent. Because the defendant failed to proffer the testimony of an uncalled witness, the defendant could not prove that there was a reasonable probability that the trial would have ended differently; furthermore, counsel gave a reasonable explanation for not introducing expert testimony in that counsel believed that the victim might have the capacity to consent and that counsel believed that expert testimony on the issue would not sway the jury. Ravon v. State, 297 Ga. App. 643, 678 S.E.2d 107 (2009).
Registration as sex offender.
- Evidence was sufficient to support the defendant's conviction of failure to register as a sex offender, as required by O.C.G.A. § 42-1-12, because when the defendant was charged with failure to register the defendant was required to register as a sex offender since the defendant had been convicted of criminal sexual conduct toward a minor in violation of O.C.G.A. § 16-6-2, and the Supreme Court's ruling that § 16-6-2 infringed upon the right of privacy had to be applied retroactively on collateral review, but the Court of Appeals could not apply it in the defendant's case since it was not on collateral review; the appeal was from a conviction for failure to register as a sex offender, which was a proceeding separate from defendant's original offense, and at the time of defendant's sodomy conviction, the conduct in which the defendant engaged was against the law in Georgia. Green v. State, 303 Ga. App. 210, 692 S.E.2d 784 (2010).
Cited in Jordon v. State, 227 Ga. 427, 181 S.E.2d 50 (1971); Jordan v. State, 124 Ga. App. 135, 183 S.E.2d 54 (1971); United States v. One Carton Containing Quantity of Paperback Books, 324 F. Supp. 957 (N.D. Ga. 1971); United States v. Stone, 472 F.2d 909 (5th Cir. 1973); Johnson v. State, 134 Ga. App. 209, 214 S.E.2d 4 (1975); Pace v. City of Atlanta, 135 Ga. App. 399, 218 S.E.2d 128 (1975); Megar v. State, 144 Ga. App. 564, 241 S.E.2d 447 (1978); Stewart v. State, 147 Ga. App. 547, 249 S.E.2d 351 (1978); Fluker v. State, 248 Ga. 290, 282 S.E.2d 112 (1981); Parker v. State, 162 Ga. App. 271, 290 S.E.2d 518 (1982); Thompson v. State, 163 Ga. App. 35, 292 S.E.2d 470 (1982); Sims v. State, 251 Ga. 877, 311 S.E.2d 161 (1984); Shepherd v. State, 173 Ga. App. 499, 326 S.E.2d 596 (1985); Whited v. State, 173 Ga. App. 435, 326 S.E.2d 803 (1985); Yeck v. State, 174 Ga. App. 710, 331 S.E.2d 76 (1985); Gilbert v. State, 176 Ga. App. 561, 336 S.E.2d 828 (1985); Scruggs v. State, 181 Ga. App. 55, 351 S.E.2d 256 (1986); Lambeth v. State, 257 Ga. 15, 354 S.E.2d 144 (1987); Bostic v. State, 184 Ga. App. 509, 361 S.E.2d 872 (1987); Stinson v. State, 185 Ga. App. 543, 364 S.E.2d 910 (1988); Jones v. State, 194 Ga. App. 356, 390 S.E.2d 623 (1990); Wiggins v. State, 208 Ga. App. 757, 432 S.E.2d 113 (1993); Green v. State, 249 Ga. App. 546, 547 S.E.2d 569 (2001); Higgins v. State, 251 Ga. App. 175, 554 S.E.2d 212 (2001); Greulich v. State, 263 Ga. App. 552, 588 S.E.2d 450 (2003); Odom v. State, 267 Ga. App. 701, 600 S.E.2d 759 (2004); Gresham v. State, 281 Ga. App. 116, 635 S.E.2d 316 (2006); Brown v. State, 280 Ga. App. 767, 634 S.E.2d 875 (2006); Walthall v. State, 281 Ga. App. 434, 636 S.E.2d 126 (2006); Grovenstein v. State, 282 Ga. App. 109, 637 S.E.2d 821 (2006); Opio v. State, 283 Ga. App. 894, 642 S.E.2d 906 (2007); Gaines v. State, 285 Ga. App. 654, 647 S.E.2d 357 (2007); Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007); Disharoon v. State, 288 Ga. App. 1, 652 S.E.2d 902 (2007); Selfe v. State, 290 Ga. App. 857, 660 S.E.2d 727 (2008), overruled on other grounds, Gordon v. State, 334 Ga. App. 633, 780 S.E.2d 376 (2015); Hyde v. State, 291 Ga. App. 662, 662 S.E.2d 764 (2008); Jennings v. State, 292 Ga. App. 149, 664 S.E.2d 248 (2008); Greene v. State, 295 Ga. App. 803, 673 S.E.2d 292 (2009); Metts v. State, 297 Ga. App. 330, 677 S.E.2d 377 (2009); Muse v. State, 323 Ga. App. 779, 748 S.E.2d 136 (2013); Ashmore v. State, 323 Ga. App. 329, 746 S.E.2d 927 (2013); Nichols v. State, 325 Ga. App. 790, 755 S.E.2d 33 (2014); Hudson v. State, 334 Ga. App. 166, 778 S.E.2d 406 (2015); Howard v. State, 340 Ga. App. 133, 796 S.E.2d 757 (2017); Thompson v. State, 348 Ga. App. 807, 824 S.E.2d 685 (2019); Spikes v. State, 353 Ga. App. 454, 838 S.E.2d 121 (2020); Torres v. State, 353 Ga. App. 470, 838 S.E.2d 137 (2020); Crawford v. State, 355 Ga. App. 401, 844 S.E.2d 294 (2020).
Aggravated Sodomy
Indictment insufficient.
- Count of the indictment charged that appellant committed the offense of aggravated sodomy by unlawfully performing "a sexual act involving his anus and the mouth of the victim" did not meet the statutory definition of sodomy. Moore v. State, 212 Ga. App. 497, 442 S.E.2d 311 (1994).
Penetration not an element of sodomy or aggravated sodomy.
- Penetration is not an element of sodomy or aggravated sodomy, O.C.G.A. § 16-6-2(a); regardless of whether anal penetration was sufficiently established by the evidence, the state was not required to prove penetration. Adams v. State, 299 Ga. App. 39, 681 S.E.2d 725 (2009), aff'd, 287 Ga. 513, 696 S.E.2d 676 (2010).
Misreading of one word in indictment was harmless error.
- With regard to a defendant's convictions for aggravated sodomy and kidnapping, the misreading of the word "in" instead of "and" when the indictment was read to the jury regarding the aggravated sodomy count did not constitute an improper comment on the evidence. Considering the charge as a whole, the appellate court was satisfied that the jury could not have been misled or confused by the trial court's minor slip of the tongue since the singular use of "in" instead of "and" constituted harmless error. Smith v. State, 294 Ga. App. 692, 670 S.E.2d 191 (2008).
No fatal variance between indictment and trial evidence.
- Even though the indictment charged the defendant with committing aggravated sodomy by performing "anal intercourse," and the defendant claimed that there was no evidence of penetration, no fatal variance existed between the indictment and the evidence at trial because the indictment satisfactorily informed defendant of the charge and protected the defendant from subsequent prosecutions for the same offense and the defendant was not misled or prejudiced. Adams v. State, 299 Ga. App. 39, 681 S.E.2d 725 (2009), aff'd, 287 Ga. 513, 696 S.E.2d 676 (2010).
Insufficient evidence of venue.
- Absent sufficient proof establishing venue, the defendant's aggravated sexual battery and aggravated sodomy convictions were reversed; but, given that sufficient evidence otherwise existed to support the former charge, retrial on the charge would not violate the defendant's double jeopardy rights. Melton v. State, 282 Ga. App. 685, 639 S.E.2d 411 (2006).
Prior similar transactions evidence admissible.
- In a defendant's trial for aggravated sodomy in violation of O.C.G.A. § 16-6-2(a)(2), a trial court did not err in admitting three similar transactions in which the defendant attempted to or did force sex on a victim because these acts, although two were only attempts that were interrupted by law enforcement, showed a bent of mind to initiate a sexual encounter without a person's consent. Blanch v. State, 306 Ga. App. 631, 703 S.E.2d 48 (2010).
Trial court did not err in admitting similar transaction evidence because certified copies of the defendant's prior conviction were sufficient to prove not only the similarity between the crimes for which the defendant was convicted, aggravated sexual battery, aggravated sodomy, child molestation, and enticing a child for indecent purposes, and the former crimes but also to establish that the defendant was, in fact, convicted of those offenses; the certified copies the state submitted included an indictment charging the defendant with continuous sexual abuse against a child to whom the defendant had recurring access and with whom the defendant engaged in three and more acts of lewd and lascivious conduct and with lewd and lascivious conduct upon the same child. Spradling v. State, 310 Ga. App. 337, 715 S.E.2d 672 (2011).
Use of tramadol in committing aggravated sodomy.
- Testimony from two victims that the victims felt "dizzy," "woozy," and generally out of it after consuming drinks provided by the defendant, one victim's testimony that the victim awoke with the defendant on top of the victim and was unable to move to resist the defendant's sexual acts, and testing of the second victim's urine showing tramadol, the consumption of which, along with alcohol, can lead to sedation and blackouts, was sufficient to support the defendant's aggravated sodomy convictions. Jones v. State, 354 Ga. App. 568, 841 S.E.2d 112 (2020).
Evidence sufficient for conviction.
- See Smith v. State, 168 Ga. App. 92, 308 S.E.2d 226 (1983); Carter v. State, 168 Ga. App. 177, 308 S.E.2d 438 (1983); Davis v. State, 168 Ga. App. 272, 308 S.E.2d 602 (1983); Williams v. State, 178 Ga. App. 80, 342 S.E.2d 18 (1986); Bentley v. State, 179 Ga. App. 287, 346 S.E.2d 98 (1986); Funderburke v. State, 180 Ga. App. 317, 349 S.E.2d 551 (1986); Cooper v. State, 180 Ga. App. 37, 348 S.E.2d 486 (1986), aff'd, 256 Ga. 631, 352 S.E.2d 382 (1987); McKenzie v. State, 187 Ga. App. 840, 371 S.E.2d 869, cert. denied, 187 Ga. App. 907, 371 S.E.2d 869 (1988); Meier v. State, 190 Ga. App. 625, 379 S.E.2d 588 (1989); Evans v. State, 191 Ga. App. 364, 381 S.E.2d 760 (1989); Shelnutt v. State, 197 Ga. App. 122, 397 S.E.2d 607 (1990); 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); Stine v. State, 199 Ga. App. 898, 406 S.E.2d 292 (1991); Miles v. State, 201 Ga. App. 568, 411 S.E.2d 566 (1991); King v. State, 265 Ga. 440, 458 S.E.2d 98 (1995); Miller v. State, 228 Ga. App. 754, 492 S.E.2d 734 (1997); Summerour v. State, 242 Ga. App. 599, 530 S.E.2d 494 (2000); In the Interest of J.D., 243 Ga. App. 644, 534 S.E.2d 112 (2000); Williams v. State, 247 Ga. App. 99, 543 S.E.2d 408 (2000); Blansit v. State, 248 Ga. App. 323, 546 S.E.2d 81 (2001); Ragan v. State, 250 Ga. App. 89, 550 S.E.2d 476 (2001); Bazin v. State, 299 Ga. App. 875, 683 S.E.2d 917 (2009).
Victim's testimony that the defendant entered the victim's apartment without permission and forced the victim to engage in oral and vaginal intercourse against the victim's will and testimony that the victim was clearly distraught after the attack was sufficient to sustain convictions for rape and aggravated sodomy. Cross v. State, 354 Ga. App. 355, 839 S.E.2d 265 (2020).
Evidence was sufficient to convict the defendant of aggravated child molestation, aggravated sodomy, and enticing a child for indecent purposes because two of the victims were nine years old at the time of their outcries and the third victim was eight years old at the time of that victim's outcry; the defendant's mother occasionally watched the victims while their father was at work, sometimes over night; the defendant would bring the victims into the defendant's bedroom, where the defendant would force the children to perform oral sex upon the defendant and anally penetrated the children with the defendant's sex organ; and the defendant threatened to hurt the children if the children told anyone about the abuse. Stodghill v. State, 351 Ga. App. 744, 832 S.E.2d 891 (2019).
Term "force" includes not only physical force, but also mental coercion. Brewster v. State, 261 Ga. App. 795, 584 S.E.2d 66 (2003).
Defendant was properly convicted of attempted aggravated sodomy where the defendant attacked a jogger, attempted to force the jogger to perform oral sex on the defendant, and where the jogger only escaped after struggling to break free and running to the jogger's home. Mann v. State, 263 Ga. App. 131, 587 S.E.2d 288 (2003).
There was sufficient evidence to support defendant's conviction for sodomy in violation of O.C.G.A. § 16-6-2 where the record revealed that the defendant and the codefendant walked up to the victim, a crack cocaine addict, grabbed the victim and hit the victim in the face, pulled the victim into the woods, and forced a penis into the victim's mouth and then tried to enter the victim from behind. Pitts v. State, 263 Ga. App. 322, 587 S.E.2d 811 (2003).
Evidence was sufficient to support defendant's aggravated sodomy convictions as a victim testified that the defendant forced the victim to perform oral sex on defendant against the victim's will, using threats and intimidation. Evans v. State, 266 Ga. App. 405, 597 S.E.2d 505 (2004).
Evidence was sufficient to convict defendant and codefendant of aggravated sodomy because: (1) defendant and codefendant grabbed the victim, hit the victim, ripped the victim's dress, pushed the victim to the ground, and took turns putting their sexual organs in the victim's mouth; and (2) a short time after the crime, an officer took defendant back to the scene, where the victim and an eyewitness identified the defendant as one of the perpetrators. Sims v. State, 267 Ga. App. 572, 600 S.E.2d 613 (2004).
Insufficient evidence of force.
- State failed to prove by a preponderance of the evidence that the defendant committed aggravated sodomy because the element of physical force was not shown by evidence that the victim's pants were unzipped and pulled down without the victim's consent and while the victim was asleep. However, a preponderance of the evidence showed that the defendant committed the lesser included offense of sodomy, which did not require a showing of force. Thurmond v. State, 353 Ga. App. 506, 838 S.E.2d 592 (2020).
Coercion of mentally retarded adult.
- Term "force" included mental coercion such as intimidation and evidence at an initial trial that the victim was a mildly mentally retarded adult functioning as a 12-year-old, and that the victim feared being punished by the defendant if the victim did not cooperate with the defendant's sexual advances, was sufficient evidence of mental coercion in the form of intimidation to satisfy the element of force for the crime of aggravated sodomy; since the evidence was sufficient to sustain the conviction, double jeopardy did not prevent a retrial granted on the ground that defendant received ineffective assistance of counsel. Weldon v. State, 270 Ga. App. 574, 607 S.E.2d 175 (2004).
Evidence supported defendant's rape, aggravated sodomy, aggravated assault, criminal trespass, misdemeanor obstruction of a law enforcement officer, felony obstruction of a law enforcement officer, and possession of marijuana conviction because: (1) a victim testified that defendant choked the victim, slammed the victim around a room, and raped and sodomized the victim, then drank a beer, took the victim's BC powder packets, and a cell phone, and left; (2) defendant fled from the police, kicked two officers, and had marijuana, BC packets, and a cell phone on his person; (3) defendant's DNA matched the DNA on the beer can; (4) a nurse testified that the victim's bruise was consistent with strangulation; and (5) a doctor testified that the victim's injuries were consistent with rape and sodomy. Lewis v. State, 271 Ga. App. 744, 611 S.E.2d 80 (2005).
Testimony of a single witness was sufficient to establish a fact under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), and the defendant's convictions for kidnapping, burglary, aggravated sodomy, rape, and false imprisonment were supported by sufficient evidence when the victim testified that the defendant forced the victim into a train boxcar, threatened to kill the victim, and had vaginal and oral sex with the victim against the victim's will and without the victim's consent; there was also circumstantial evidence showing the victim's lack of consent, including the victim's fleeing from the boxcar while naked, the victim's outcry to a train engineer that the victim had been raped, and the victim's injuries. Davis v. State, 278 Ga. App. 628, 629 S.E.2d 537 (2006).
Defendant's convictions of rape, aggravated sodomy, false imprisonment, and two counts of aggravated assault were supported by sufficient evidence in the form of the victim's injuries, and the victim's testimony that, among other things, after the victim refused the defendant's request for sex, the defendant threw the victim on the bed, hit her in the back and on the arms with hedge clippers, ordered the victim to remove the victim's clothes, dragged the victim by the hair back into the house after the victim had escaped through a window, grabbed the victim, twisted the victim's arm, and said, "I'm trying - bitch, I'm going to kill you," hit the victim in the arm and leg with the hedge clippers, punched the victim on the lips and on the forehead, threw the victim on the bed and raped the victim and made the victim perform oral sex on the defendant. Tarver v. State, 280 Ga. App. 89, 633 S.E.2d 415 (2006).
Sufficient evidence supported the defendant's convictions of aggravated assault in violation of O.C.G.A. § 16-5-21 and aggravated sodomy in violation of O.C.G.A. § 16-6-2(a) although the defendant pointed to the defendant's previous sexual relationship with the victim and to alleged inconsistencies in the testimony of the victim and the victim's friend; the appellate court refused to weigh the evidence or determine witness credibility, and it found that the evidence, which included testimony that the defendant forcibly placed the victim in the defendant's truck, drove the victim across the state line to an apartment, forced the victim to have sex with the defendant, and cut the victim with a knife, was sufficient to convict. Martin v. State, 281 Ga. App. 64, 635 S.E.2d 358 (2006).
Because sufficient evidence showed that the defendant, by posing as a police officer and driving the victims to remote locations, used fear and intimidation to ensure that the victims would cooperate and agree to have sex, the defendant was not entitled to an acquittal as to the charges of impersonating an officer, aggravated sodomy, attempted aggravated sodomy, aggravated assault and rape; furthermore, though both victims willingly got into the defendant's car, after the victims pleaded to be let go and the defendant refused to grant those pleas, that act amounted to a kidnapping. Dasher v. State, 281 Ga. App. 326, 636 S.E.2d 83 (2006).
Error in jury instruction on certainty of identification.
- Despite the defendant's correct assertion that the trial court erred in charging the jury that one of the factors to be considered in assessing the reliability of identification testimony was the level of certainty shown by the witness about the identification, because there was evidence other than the victim's identification of the defendant which connected the defendant to the offenses of burglary, aggravated sodomy, and aggravated sexual battery, that error was harmless and the convictions were upheld. Bharadia v. State, 282 Ga. App. 556, 639 S.E.2d 545 (2006), cert. denied, No. S07C0522, 2007 Ga. LEXIS 222 (Ga. 2007).
Testimony by a victim that the defendant and an accomplice, armed with handguns, forcibly entered the victim's apartment, raped and sodomized the victim, struck the victim with a gun, stole jewelry, bound the victim, and escaped in a car owned by the victim's prospective spouse, and evidence that 24 fingerprints lifted from the apartment and car matched the defendant's was sufficient to convict the defendant of aggravated sodomy. Crawford v. State, 292 Ga. App. 463, 664 S.E.2d 820 (2008).
Evidence was sufficient to support a verdict of aggravated sodomy. The victim testified that the defendant threatened to kill her and that she had oral sex with him as a result; furthermore, defense witnesses testified that the victim screamed "rape" and "stop" several times, which caused the witnesses to twice respond to see what was happening, and that on one of those occasions, the victim jumped into the back of a truck in order to get away from the defendant. Eller v. State, 294 Ga. App. 77, 668 S.E.2d 755 (2008).
There was sufficient evidence to uphold a defendant's convictions for aggravated sodomy and kidnapping based on the testimony of the victim; who identified the defendant as the attacker who forced the victim into a vehicle by threat of a knife; there was evidence of various injuries on the victim consistent with the victim's description of the attack; the defendant admitted to having sexual intercourse with the victim but asserted that the intercourse was consensual; and forensic biologists testified as state expert witnesses that the swab of the victim's rectal cavity contained sperm and that DNA found on that swab matched DNA from the defendant's blood sample. Smith v. State, 294 Ga. App. 692, 670 S.E.2d 191 (2008).
Following evidence was sufficient to convict the defendant of kidnapping with bodily injury, aggravated sodomy, rape, and robbery by intimidation: 1) the victim's testimony of being repeatedly raped by the defendant at knife point, forced to perform oral sex, beaten, robbed, and threatened with death; 2) a nurse's testimony that the victim was crying, rocking back and forth, and had bruised cheeks; and 3) evidence that the defendant's DNA matched sperm cell DNA found on the victim's body. Sanders v. State, 297 Ga. App. 897, 678 S.E.2d 579 (2009).
Sufficient evidence supported the defendant's convictions of armed robbery, O.C.G.A. § 16-8-41(a), rape, O.C.G.A. § 16-6-1(a)(1), aggravated assault, O.C.G.A. § 16-5-21(a)(2), aggravated sexual battery, O.C.G.A. § 16-6-22.2(b), kidnapping, O.C.G.A. § 16-5-40(a), and aggravated sodomy, O.C.G.A. § 16-6-2(a)(2) involving four different victims on three separate dates; both the husband and the wife, the victims in the first criminal incident, identified the defendant in court as the perpetrator of the crimes. Two separate DNA analyses testified to by two forensic biologists showed that the defendant's sperm was present in the vaginas of the other two female victims. Robins v. State, 298 Ga. App. 70, 679 S.E.2d 92 (2009).
There was sufficient evidence presented for the jury to find the defendant guilty of criminal attempt to commit aggravated sodomy because the state presented sufficient evidence via the victim's testimony that the defendant attempted to force the victim to perform oral sodomy; the victim testified that the defendant moved her to the bedroom of her home while holding a knife and told her to perform oral sex on him and that when she explained that she could not engage in the act the defendant, while still standing over her, moistened and fondled himself and then forced her to fondle him. Williams v. State, 300 Ga. App. 839, 686 S.E.2d 446 (2009).
Victim's testimony alone sufficient for conviction.
- Sufficient evidence was presented to the jury to support the defendant's convictions for armed robbery, aggravated assault, burglary, criminal attempt to commit aggravated sodomy, and possession of a knife during the commission of a crime because the victim's testimony alone was sufficient to support the convictions; regardless of any inconsistencies in the victim's testimony, it was for the jury to assess witness credibility, and the jury chose to believe the victim's identification of the defendant as the individual who committed the crimes. Williams v. State, 300 Ga. App. 839, 686 S.E.2d 446 (2009).
Trial court did not err in convicting the defendant of criminal attempt to commit aggravated sodomy in violation of O.C.G.A. §§ 16-4-1 and16-6-2 because a reasonable trier of fact could have found that the defendant had the necessary criminal intent to commit aggravated sodomy when the evidence presented at trial showed that the defendant forced the victim's mouth into close proximity with the defendant's sex organs while the victim screamed for help, kicked, and fought the defendant; a reasonable trier of fact could have found that had the victim not been able to escape, the defendant would have forced the victim to engage in sodomy, thereby demonstrating that the defendant had taken a substantial step toward committing aggravated sodomy even though the defendant had not spoken, touched either the defendant's or the victim's sex organs, or exposed the defendant's genitals when the violent acts occurred. English v. State, 301 Ga. App. 842, 689 S.E.2d 130 (2010).
Evidence was sufficient for a rational trier of fact to find the defendant guilty of aggravated sodomy of one victim and rape and aggravated sodomy of a second victim because the jury was authorized to conclude, based on a nurse's testimony and the medical evidence, that penetration occurred since the nurse was properly qualified as an expert in sexual assault examination and testified that the first victim's external injuries established the potential for penetration; clumps of hair were found in the second victim's trailer, and the defendant's DNA matched the DNA found on the hair. Blash v. State, 304 Ga. App. 542, 697 S.E.2d 265 (2010).
Evidence presented at trial was sufficient to authorize a rational jury to find the defendant guilty beyond a reasonable doubt of rape, aggravated sodomy, aggravated assault with intent to rape, and simple battery because the victim's testimony, standing alone, could sustain the convictions; the jury was entitled to take into account similar transaction evidence for the purpose of showing the defendant's intent, bent of mind, and course of conduct, and while the defendant testified to a different version of what transpired, it was the exclusive role of the jury to determine witness credibility and to choose what evidence to believe and what to reject. Alvarez v. State, 309 Ga. App. 462, 710 S.E.2d 583 (2011).
There was sufficient evidence to support the defendant's conviction for aggravated sodomy because the victim testified that while holding a knife, and after having vaginal intercourse with the victim against her will, the defendant put his penis into her mouth to ejaculate; pursuant to former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8), the victim's testimony alone was sufficient to support a finding of guilt beyond a reasonable doubt. Ellis v. State, 316 Ga. App. 352, 729 S.E.2d 492 (2012).
Victim's attempt to avoid abuse as evidence of force.
- Evidence that the first victim attempted to avoid the abuse by asking to sleep in a different room or trying to sleep on the couch was sufficient to authorize the jury to conclude that the defendant used force when the defendant performed oral sex on the first victim. Conley v. State, 329 Ga. App. 96, 763 S.E.2d 881 (2014).
Evidence that the second victim referred to the defendant as "uncle," the defendant forced the second victim to touch his penis, the defendant removed the victim's underwear before molesting the victim, and the defendant attempted to keep the victim silent was sufficient for the jury to find that the second victim was forced to engage in oral sex. Conley v. State, 329 Ga. App. 96, 763 S.E.2d 881 (2014).
Evidence was sufficient to convict the defendant of rape, aggravated sodomy, and two counts of armed robbery because the co-defendant, the defendant, and a third man rushed into the apartment and secured the arms and legs of the male victims with duct tape while they ransacked the apartment looking for money and drugs; as the victim entered the bathroom and sat on the toilet, the defendant followed the victim in, stood in front of the victim, and forced the victim at gunpoint to perform oral sex on the defendant; the defendant later bent the victim over a sofa, and had sexual intercourse with the victim; and the victim identified the defendant as the man who sexually assaulted the victim. Traylor v. State, 332 Ga. App. 441, 773 S.E.2d 403 (2015).
Evidence was sufficient to support the defendant's convictions for rape and two counts of aggravated sodomy based on the testimony of the victim as to the force and violence used by the defendant as well as the testimony of a doctor who had examined the victim, who indicated that signs of possible injuries to the victim's vaginal cavity and anal region were consistent with the victim's story that the victim was forcibly penetrated. Haslam v. State, 341 Ga. App. 330, 801 S.E.2d 61 (2017).
Sodomy committed by prisoner.
- Prisoner was not entitled to a writ of habeas corpus based on the argument of actual innocence because there was no evidence to support the element of force required to convict the prisoner for aggravated sodomy and that it would be a miscarriage of justice to apply a procedural bar; the victim testified that the victim submitted to the prisoner's desires because the victim believed that the prisoner would physically hurt the victim which, in the context of the prisoner's words and actions, constituted a reasonable fear. Thompson v. Stinson, 279 Ga. 196, 611 S.E.2d 29 (2005).
Severance of offenses.
- Trial court did not err in denying the defendant's motion to sever the charges of rape, aggravated assault, kidnapping with bodily injury, and aggravated sodomy arising out of three sexual assaults against three different women because the charges against the defendant clearly showed a recurring pattern of conduct suggesting a common scheme or modus operandi as the victims of the three sexual assaults were adult women who did not know the defendant, all three incidents occurred in DeKalb County within 6 months of each other, each victim was taken by vehicle to a secluded location before the victims were raped, all three incidents involved a handgun, and semen matching the defendant's DNA profile was found on each victim. Ray v. State, 329 Ga. App. 5, 763 S.E.2d 361 (2014).
There is no implicit marital exclusion within O.C.G.A. § 16-6-2 that makes it legally impossible for a husband to be guilty of an offense of aggravated sodomy performed upon his wife. Warren v. State, 255 Ga. 151, 336 S.E.2d 221 (1985) (decided prior to 1996 amendment).
Defendant's familial relationship to victim.
- Force, as an element of aggravated sodomy under O.C.G.A. § 16-6-2(a), may be inferred by evidence of intimidation arising from the familial relationship. Long v. State, 241 Ga. App. 370, 526 S.E.2d 85 (1999), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).
Sufficient evidence of force.
- There was sufficient evidence to support a finding of force for purposes of the defendant's conviction for aggravated sodomy, including evidence that the defendant gave the victim, the defendant's 17-year-old nephew, alcohol and an unknown drug with the intent of rendering the victim incapable of resisting the defendant's sexual advances. Handley v. State, 352 Ga. App. 106, 834 S.E.2d 114 (2019), cert. denied, No. S20C0366, 2020 Ga. LEXIS 385 (Ga. 2020).
Kidnapping and aggravated sodomy crimes did not merge since there was sufficient evidence from which the jury could have found that defendant's action in choking the victim almost to the point of unconsciousness after forcibly taking the victim from the living room to the bedroom constituted the bodily injury necessary to establish all the elements of kidnapping with bodily injury, which was completed before defendant committed the aggravated sodomy. Olsen v. State, 191 Ga. App. 763, 382 S.E.2d 715 (1989).
Kidnapping and aggravated sodomy not included offenses.
- Kidnapping and aggravated sodomy are not included offenses as a matter of law and, even though they may be included as a matter of fact, where the same evidence was not used to prove both crimes, the trial court did not err by refusing to find a merger. Hardy v. State, 210 Ga. App. 811, 437 S.E.2d 790 (1993).
False imprisonment and aggravated sodomy not included offenses.
- Trial court did not err in failing to merge a false imprisonment offense with attempt to commit aggravated sodomy. Howard v. State, 272 Ga. 242, 527 S.E.2d 194 (2000).
Criminal intent.
- Trial judge was authorized to find beyond a reasonable doubt that defendant acted with the criminal intent to commit the prohibited act of aggravated sodomy by placing defendant's sexual organ in the victim's mouth with force and against the victim's will. Since there was no evidence that the trial court did not make the requisite finding regarding criminal intent, the appellate court found no error. Sims v. State, 267 Ga. App. 572, 600 S.E.2d 613 (2004).
Intent to rape and attempted aggravated sodomy are not lesser included offenses of each other.
- Statutory definitions of intent to rape under O.C.G.A. § 16-5-21, and attempted aggravated sodomy under O.C.G.A. § 16-6-2, make it clear that the Georgia General Assembly intended to prohibit two designated kinds of general conduct, and that the two crimes, which were codified in separate chapters, are not established by same proof of all facts; neither crime is a lesser, or included, offense of the other as a matter of law or fact, for facts must differ to convict under the statutes. Bissell v. State, 157 Ga. App. 711, 278 S.E.2d 415 (1981).
Merger of sodomy and aggravated sodomy convictions.
- When, following conviction, the trial court merged aggravated sodomy and sodomy counts and entered judgment against defendant on rape and aggravated sodomy counts, the ruling in Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998) did not render defendant's conviction for aggravated sodomy void. McBee v. State, 239 Ga. App. 314, 521 S.E.2d 209 (1999).
Jury instruction on aggravated sodomy.
- No reversible error resulted from the trial court's jury instruction that aggravated sodomy may be committed by acts involving the sex organ of one and the mouth or anus of another, notwithstanding the fact the indictment and evidence only involved acts of oral sodomy. Garland v. State, 213 Ga. App. 583, 445 S.E.2d 567 (1994).
Charge as to consent appropriate.
- Trial court did not err in charging the jury on consent, since consent is at issue in a prosecution for aggravated sodomy. Evans v. State, 191 Ga. App. 364, 381 S.E.2d 760 (1989).
Charge on presumption that no crime has been committed.
- Refusal of the trial court to give a requested charge that "in all cases there exists the presumption that no crime has been committed," is not error when the victim's testimony, if believed by the jury, was sufficient direct evidence to establish a corpus for the offenses of rape, burglary, and aggravated sodomy alleged, and the trial court charged the jury the general charge on the presumption of innocence. Smith v. State, 180 Ga. App. 422, 349 S.E.2d 279 (1986).
Defendant's incriminating admission to victim admissible.
- Victim was properly allowed to testify, at defendant's trial for rape and aggravated sodomy, that, during the course of the victim's ordeal, defendant had made the incriminating admission to the victim that "there's been ten others, ten other women, and you're not the only one." Copeland v. State, 177 Ga. App. 773, 341 S.E.2d 302 (1986).
Evidence sufficient for conviction of rape, aggravated sodomy, and burglary.
- See Clark v. State, 186 Ga. App. 882, 369 S.E.2d 282 (1988).
Evidence sufficient to authorize guilty verdict for aggravated sodomy and armed robbery.
- See Jackson v. State, 165 Ga. App. 737, 302 S.E.2d 611 (1983).
Evidence insufficient for conviction.
- Evidence of genital to genital contact whereby defendant contacted victim's penis and "butt" without contacting victim's anus was insufficient to support a conviction under O.C.G.A. § 16-6-2. Elrod v. State, 208 Ga. App. 787, 432 S.E.2d 808 (1993).
Aggravated sodomy based on common criminal intent of codefendant.
- Denial of motion for directed verdict on charge of aggravated sodomy was proper because defendant and the codefendant sexually assaulted three victims during armed robbery, including one instance in which defendant and the codefendant took turns raping one victim, and the aggravated sodomy was committed during the sexual assaults; the jury could reasonably find that defendant and the codefendant had a common criminal intent to commit the sexual assaults and defendant could be found guilty of the act performed by the codefendant. Coley v. State, 272 Ga. App. 446, 612 S.E.2d 608 (2005).
Children as Victims
Evidence of force against eight year old not necessary.
- Child of eight years is incapable under the law of consenting to any sexual act, rendering any sexual acts directed to such a child forcible under the law. Hamm v. State, 214 Ga. App. 705, 448 S.E.2d 773 (1994).
Because children do not have the capacity to give consent to or resist a sexual act directed at them, acts such as incest, sodomy, and aggravated sodomy are, in law, forcible and against the will of the child. House v. State, 236 Ga. App. 405, 512 S.E.2d 287 (1999).
Female under 14 years of age is legally incapable of giving consent; therefore, it is not necessary to prove the "against the will element." Hines v. State, 173 Ga. App. 657, 327 S.E.2d 786 (1985).
No merger of sodomy and child molestation cases.
- Trial court did not err in failing to merge the conviction for incest by committing sodomy on a niece with the three aggravated child molestation convictions because child molestation required proof that the victim was younger than 16 and incest required proof on consanguinity, and those required elements did not overlap. Jones v. State, 333 Ga. App. 796, 777 S.E.2d 480 (2015).
Attempted aggravated chid molestation and attempted aggravated sodomy did not merge.
- In the defendant's trial for charges for going to a meeting place with the purpose of having sex with fictitious brothers, ages 12 and 5, the trial court erred in merging attempted aggravated child molestation into attempted aggravated sodomy convictions because the offenses did not merge in either direction under O.C.G.A. §§ 16-1-6 and16-1-7. Each required proof of an element the other did not, and the two crimes were equally serious. Metcalf v. State, 349 Ga. App. 408, 825 S.E.2d 909 (2019).
Defendant was properly sentenced for both sodomy and child molestation, where the indictment as drawn charged defendant specifically with two separate and different sexual acts, and the child molestation was proved without any reference to the act of sodomy and was factually and legally distinct from it. Garrett v. State, 188 Ga. App. 176, 372 S.E.2d 506 (1988).
Child molestation in connection with the fondling of the victim's vagina did not merge with aggravated sodomy charges based on two acts of oral sex, where the acts of sodomy were not used to establish the child molestation charge. Pressley v. State, 197 Ga. App. 270, 398 S.E.2d 268 (1990).
Defendant convicted on child molestation despite sodomy acquittal.
- Defendant's acquittal on a separate charge of aggravated sodomy did not require that defendant should also have been acquitted on an aggravated child molestation charge. Because there was evidence of physical injury to support the aggravated molestation charge, it was not necessary to prove sodomy to maintain the molestation conviction. Baker v. State, 228 Ga. App. 32, 491 S.E.2d 78 (1997).
Evidence sufficient for child molestation conviction.
- Evidence was sufficient to sustain the defendant's convictions for aggravated sodomy and aggravated child molestation where the child testified that the defendant made the child perform oral sex and penetrated the child anally, and the record showed opportunity, consistent allegations by the victim to multiple parties, and deception by the defendant when asked about the charged offenses during a polygraph examination. Guzman v. State, 273 Ga. App. 819, 616 S.E.2d 142 (2005).
Thirteen-year-old victim's testimony that when victim was sleeping, defendant pulled down victim's pants and underwear and performed oral sex on the victim, and that testimony was corroborated by defendant's love interest who observed the incident, was sufficient evidence to support defendant's conviction for aggravated child molestation, in violation of O.C.G.A. § 16-6-4(c), as there was sufficient evidence to establish that defendant committed "sodomy," as that term was defined under O.C.G.A. § 16-6-2(a); accordingly, the trial court properly denied defendant's motion for a judgment of acquittal pursuant to O.C.G.A. § 17-9-1. Steverson v. State, 276 Ga. App. 876, 625 S.E.2d 476 (2005).
Rape, incest, child molestation, aggravated child molestation, and aggravated sodomy convictions were all upheld on appeal, given that the elements of child molestation and aggravated child molestation, including venue, were supported by the female victim's testimony. Forbes v. State, 284 Ga. App. 520, 644 S.E.2d 345 (2007).
Minor victim's description of oral sex with defendant, a 30 year old male, established sodomy under O.C.G.A. § 16-6-2(a)(1), which was sufficient to support a conviction of aggravated child molestation. Flewelling v. State, 300 Ga. App. 505, 685 S.E.2d 758 (2009).
Prisoner's sufficiency of the evidence claim under 28 U.S.C. § 2254 was properly denied because although the jury rejected testimony of forcible rape by a 13-year-old victim, the jury was free to accept testimony stating that the victim had sexual intercourse and performed oral sex on the prisoner and proof of consent was not required under O.C.G.A. §§ 16-6-2,16-6-3, and16-6-4 for offenses of statutory rape and aggravated child molestation. Dorsey v. Burnette, F.3d (11th Cir. Mar. 18, 2009)(Unpublished).
Evidence was sufficient to authorize a juvenile's adjudication of delinquency for acts of aggravated sodomy and child molestation beyond a reasonable doubt based on the evidence that showed that the juvenile not only had rubbed the juvenile's penis against the victim's buttocks, but also placed the penis inside the victim's anus and that such contact hurt the victim. In the Interest of M.C., 322 Ga. App. 239, 744 S.E.2d 436 (2013).
Child molestation and aggravated sodomy are legally distinct, and when the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769, cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019), cert. denied, 200 Ga. App. 896, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).
Evidence sufficient for conviction of sodomy of minor.
- Evidence was sufficient for a rational trier of fact to have found defendant guilty beyond a reasonable doubt of aggravated sodomy where, inter alia, he told his victims, his underage step-daughters, that if they told anyone, he would hurt them. Chancey v. State, 258 Ga. App. 716, 574 S.E.2d 904 (2002).
Evidence sufficient for conviction of sodomy of minor.
- Aggravated child molestation, child molestation, enticing a child for indecent purposes, and aggravated sodomy convictions were all supported by sufficient evidence provided by the victims detailing the inappropriate touching and anal penetration committed by defendant, and confirmed by the examining experts. Wilkerson v. State, 267 Ga. App. 585, 600 S.E.2d 677 (2004).
Sufficient evidence, including testimony from the child victim identifying the defendant's vehicle, evidence of the defendant's DNA matching that of the victim, and expert testimony that the frequency of such occurrence was approximately one in two billion in the Caucasian population, and similar transaction evidence, supported defendant's kidnapping with bodily injury, rape, aggravated sodomy, aggravated child molestation, aggravated assault, and first-degree cruelty to children convictions. Morita v. State, 270 Ga. App. 372, 606 S.E.2d 595 (2004).
Because the victim's statement of sexual abuse was sufficient under former O.C.G.A. § 24-4-8 (see now O.C.G.A. § 24-14-8) to convict the defendant of kidnapping with bodily injury, aggravated child molestation, rape, aggravated sodomy, aggravated assault, and possession of a knife during the commission of a crime, the victim's testimony did not have to be corroborated by physical evidence. Gartrell v. State, 272 Ga. App. 726, 613 S.E.2d 226 (2005).
Evidence that the defendant had and received oral sex with the defendant's love interest's minor children, sometimes by force, on numerous occasions, was sufficient to sustain a conviction for aggravated sodomy in violation of O.C.G.A. § 16-6-2. 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), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
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 and16-6-2(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), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Evidence supported a defendant's conviction for aggravated sodomy as a showing of penetration was not required to 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 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 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).
Evidence sufficient for sodomy conviction.
- Victim's testimony that the defendant forcibly rubbed the defendant's penis on the victim's lips and mouth was sufficient to support the defendant's conviction for aggravated sodomy. Bell v. State, 352 Ga. App. 802, 835 S.E.2d 697 (2019).
Testimony from three victims that the defendant performed at least one nonconsensual act in which the defendant's mouth touched the victim's penis was sufficient to support the defendant's sodomy convictions. Jones v. State, 354 Ga. App. 568, 841 S.E.2d 112 (2020).
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 support 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, 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 element of aggravated sodomy. Ingram v. State, 211 Ga. App. 252, 438 S.E.2d 708 (1993), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).
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. 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 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 aggravated 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 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 and42-1-12. 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. 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).
Illegal sentence.
- Defendant's conviction for life with 25 years in confinement was void because it was not statutorily permitted. Upton v. State, 350 Ga. App. 535, 829 S.E.2d 791 (2019).
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).
OPINIONS OF THE ATTORNEY GENERALThe 1996 amendment repealed the ten year mandatory minimum sentence for rape and aggravated sodomy formerly applicable to first offenders. 1996 Op. Att'y Gen. No. U96-20.
RESEARCH REFERENCES
Am. Jur. 2d.
- 70C Am. Jur. 2d, Sodomy, § 1 et seq.
Sexual Organ Injuries: Male Genitalia, 70 POF3d 229.
C.J.S.- 81A C.J.S., Sodomy, § 1 et seq.
ALR.- Assault with intent to commit unnatural sex act upon minor as affected by latter's consent, 65 A.L.R.2d 748.
Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime, 34 A.L.R.3d 652.
Consent as defense in prosecution for sodomy, 58 A.L.R.3d 636.
What constitutes such discriminatory prosecution or enforcement of laws as to provide valid defense in state criminal proceedings, 95 A.L.R.3d 280.
Validity of statute making sodomy a criminal offense, 20 A.L.R.4th 1009.
Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 25 A.L.R.4th 1213.
Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 103 A.L.R.6th 507.
Construction and application of 18 U.S.C.A. § 2242(2), proscribing sexual abuse of person incapable of appraising nature of conduct, declining participation, or communicating unwillingness to participate in sexual act, 83 A.L.R. Fed. 2d 1.