Brewer v. State

• Decision Date: 05 February 1999
• Docket Number: No. A98A1672.,A98A1672.
• Citation: 236 Ga. App. 546,512 S.E.2d 30
• Parties: BREWER v. The STATE.
• Court: Georgia Court of Appeals

512 S.E.2d 30

236 Ga. App. 546

BREWER v. The STATE.

No. A98A1672.

Court of Appeals of Georgia.

February 5, 1999.

Reconsideration Denied February 19, 1999.

Certiorari Granted June 11, 1999.

Michael R. McCarthy, Dalton, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

ANDREWS, Judge.

David Roy Brewer appeals from the judgment of conviction entered on jury verdicts finding him guilty of aggravated sodomy, aggravated child molestation, and child molestation. In sentencing Brewer, the trial court merged the aggravated child molestation conviction into the aggravated sodomy conviction.

1. The evidence was sufficient to support the jury verdicts. The State presented testimony from the 11-year-old victim, from a Department of Family & Children Services investigator who interviewed the victim, from a police detective who interviewed the victim, and from neighbors who spoke to the victim about the allegations, describing the alleged acts of aggravated sodomy and child molestation. The State also presented evidence of statements given by Brewer to the police admitting that he committed the alleged acts on the victim. Although Brewer testified and denied committing any of the alleged acts, determining the credibility of the witnesses was a task for the jury. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Brewer was guilty of the charged offenses. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Brewer claims that a jury instruction given by the trial court on the offense of aggravated sodomy improperly relieved the State of its burden to prove the essential element of force.

In instructing the jury on the offense of aggravated sodomy, the trial court stated that: "[A] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. A person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the other person. A child under the age of fourteen years is legally incapable of consenting to sexual contact. In cases of incapacity, such as with a child under the age of fourteen years, the element of force is automatically supplied by the law."

Brewer contends the portion of the instruction stating that the element of force is automatically supplied by law when the victim is a child under the age of 14 years improperly relieved the State of its obligation to prove the element of force. There was no error in the instruction. "[T]he commission of sodomy by an adult on a child could not be simple sodomy, but would always be aggravated sodomy because the `with force and against the will' element of the crime is automatically supplied by the commission of the crime on a person [under the legal age of consent]." (Citations and punctuation omitted.) Huggins v. State, 192 Ga.App. 820, 821, 386 S.E.2d 703 (1989); Luke v. State, 222 Ga.App. 203, 204-206, 474 S.E.2d 49 (1996). Although the State must prove the element of force to obtain a conviction for forcible rape of a victim under the age of consent, the Supreme Court has distinguished forcible rape from other sexual offenses and made clear that no such proof is required to obtain a conviction for aggravated sodomy against a victim under the age of consent. State v. Collins, 270 Ga. 42-45, 508 S.E.2d 390 (1998); Cooper v. State, 256 Ga. 631, 352 S.E.2d 382 (1987). Accordingly, the instruction correctly informed the jury that the proof presented by the State that the victim was 11 years old at the time of the offense would be sufficient evidence that the act of sodomy was done with force and against the will of the victim.

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