Cooper v. State, 71755

• Decision Date: 15 July 1986
• Docket Number: No. 71755,71755
• Citation: 180 Ga.App. 37,348 S.E.2d 486
• Parties: COOPER v. The STATE.
• Court: Georgia Court of Appeals

Page 486

348 S.E.2d 486

180 Ga.App. 37

COOPER v. The STATE.

No. 71755.

Court of Appeals of Georgia.

July 15, 1986.

Rehearing denied July 30, 1986.

William Rhymer, Winder, for appellant.

Timothy G. Madison, Dist. Atty., T. David Moss, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

The defendant appeals his conviction for aggravated sodomy (OCGA § 16-6-2(a)) on a five-year-old child victim.

1. Hines v. State, 173 Ga.App. 657, 327 S.E.2d 786 (1985), held that the state must show the defendant used force to commit sodomy in order to convict on aggravated sodomy under OCGA § 16-6-2, which specifies that such offense must be "with force and against the will of the other person." Hines relied upon Drake v. State, 239 Ga. 232, 236 S.E.2d 748 (1977), a case concerned with distinguishing statutory rape from common-law rape. In differentiating, the court utilized language that "age is irrelevant in a forcible rape case except insofar as it may show [the victim] incapable of giving consent" but that "force must also be shown."

Sodomy is either consensual or nonconsensual. There is no equivalent to statutory rape. Age matters insofar as one might be an accomplice or party to the crime. A child under 13 cannot be guilty of a crime. OCGA § 16-3-1. Thus, our present situation regarding sodomy is very similar to rape in 1852 when the Supreme Court held: "A child under ten years [then the age of criminality] of age, cannot consent to carnal intercourse, so as to rebut the presumption of force." Stephen v. State, 11 Ga. 225 (15) (1852). This view was reaffirmed in Gosha v. State, 56 Ga. 36 (1) (1876), wherein the court held: "An infant under ten years of age cannot consent to sexual intercourse, and the fact that such is her age is conclusive that the act is done forcibly and against her will." This principle was extended to encompass any person who through some disability either mental or physical, was incapable of either resisting or consenting to the act. Thus, with regard to an imbecile female of the chronological age of 19, the Supreme Court held: "Women like the unfortunate girl involved in this case must be protected, not only against the animal lusts of the members of the opposite sex, but against themselves as well; and men, who, knowing of their imbecility, take advantage of their helpless condition to gratify their own lustful desires, are guilty of rape, though they use no more force than that involved in the carnal act, and though the woman offer no resistance to the consummation of their purpose." Gore v. State, 119 Ga. 418, 424, 46 S.E. 671 (1903). Compare Morrow v. State, 13 Ga.App. 189, 79 S.E. 63 (1913), involving whether a fifteen-year-old girl lacked the mental capacity to intelligently assent to the act.

The same rule, that no more force need be used than that necessary to accomplish the carnal act, was held to apply to a sleeping female in Brown v. State, 138 Ga. 814(1), 76 S.E. 379 (1912), and to an intoxicated one in Evans v. State, 67 Ga.App. 631, 21 S.E.2d 336 (1942). The rationale in the case of a drunken woman had previously been noted in Gore, supra, where the decision quoted Chief Justice Campbell: " 'It would be monstrous to say that these poor females are to be subjected to such violence, without the parties inflicting it being liable to be indicted. If so, every drunken woman returning from market, and happening to fall down on the road side, may be ravished at the will of the passers by.' " Gore v. State, supra, 119 Ga. at 424, 46 S.E. 671.

The continued application of the maxim was reaffirmed in Smith v. State, 161 Ga. 421, 423, 131 S.E. 163 (1925), a twenty-seven-year old, Mitchell v. State, 190 Ga. 571, 574, 9 S.E.2d 892 (1940), a twenty-two-year-old and Whitaker v. State, 199 Ga. 344, 349, 34 S.E.2d 499 (1945), a nineteen-year-old. Even Drake recognized this established principle, supra, 239 Ga. at p. 234, 236 S.E.2d 748, and referred to it as constructive force, "that is, in the use of such force as is necessary to effect the penetration made by the defendant."

From this overview of the legal precedents it is clear that in rape (and perforce in sodomy) the force necessary to overcome the victim's resistance was the force meant by the statute. Since in one incapable of resisting or of consenting or dissenting there is no predicate in law for the showing of force as a reaction in resisting defendant, the force that must be shown is simply the force necessary to commit the sexual act on one whom the law views as, in fact, having no legal capacity to resist or deny consent. From the beginning this included children of tender years and under the age of criminal responsibility, and thereafter protection was broadened to encompass those with a similar inability to consent or resist. For example, in Whitaker v. State, supra, the nineteen-year-old found incapable of exercising free will was described as having a mental age of between 8 and 10. Certainly the need to apply such doctrine would be even more evident in the case of a five-year-old child.

In our view the language used by the Supreme Court in Drake, supra, concerning the irrelevancy of age with regard to force as to a nine-year-old was unnecessary since force (intimidation) was found. As has been demonstrated, the cases had uniformly recognized that age was a vital factor insofar as the amount of force necessary to commit the act. We decline to extend the scope of this dubious wording found in Drake and seized upon in Hines, supra, also involving a nine-year-old, and do not apply it in the circumstances here. Furthermore, Presiding Judge Deen concurred in the judgment only in Hines, supra, and therefore, it being only a two-judge decision it does not have any precedential value and is not now binding on this court. Rule 35(b); Haynes v. Hoffman, 164 Ga.App. 236, 237(2), 296 S.E.2d 216 (1982).

We choose this course for two reasons: (1) the law, as a matter of policy, has always been concerned with the rights of children of tender years, especially those under seven, ¹ in recognition of their lack of legal judgment or discretion and their inability to protect themselves; (2) here we deal with sodomy and its special statutory provisions and not with rape and its statutory scheme. We therefore conclude that the force required against a five-year-old, under the aggravated sodomy statute, is the force necessary to accomplish the act.

As to defendant's contention that the contact between his sexual organ and child's anus was not proved, it may be observed that the child described the act as "he put his ding-a-ling in my butt." She then pointed out on a doll where the contact occurred. The doctor who examined her a week later and found gonorrhea testified that "[i]t requires sexual contact." Defendant, who also had the disease, testified that the child rubbed herself on him while he was asleep, forcing this sex act on him, so that he must have contracted the disease from her. Thus his contention is baseless as a matter of fact; he is ignoring the evidence and even his own testimony.

When viewed in a light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offense beyond a reasonable doubt.

2. Error is assigned on the failure to give a written request to charge which is not included as part of the record. From the colloquy between counsel and the trial court we may surmise that it was some part of OCGA § 16-6-4, child molestation. We know at least that it was not all of that section, however, because defendant does not contend that aggravated child molestation should have been included in the instruction.

Assuming that the request was an accurate statement of the law and that child molestation could be considered a lesser included offense of aggravated sodomy, the failure to give it in charge was not erroneous.

"[I]t is never error for a trial court to refuse to charge on a lesser included offense even though requested in writing when the evidence does not reasonably raise the issue that the defendant may be only guilty of the lesser crime." Green v. State, 175 Ga.App. 92, 94(4), 332 S.E.2d 385 (1985). Thus, where under the evidence there were only two possible verdicts--guilty as charged or acquittal, it is not error to refuse the written request. Beaman v. State, 161 Ga.App. 129, 131(4), 291 S.E.2d 244 (1982).

Judgment affirmed.

DEEN, McMURRAY, P.JJ., and POPE, J., concur.

BANKE, C.J., and DEEN, P.J., concur specially.

BIRDSONG, P.J., and SOGNIER, J., concur in the judgment only.

CARLEY, J., dissents as to Division 1 only.

BENHAM, J., dissents.

BANKE, Chief Judge, concurring specially.

In Drake v. State, 239 Ga. 232, 234-235, 236 S.E.2d 748 (1977), the Supreme Court cited with approval the following language from Wharton, Criminal Law & Procedure, § 307 (1957): "In the ordinary [rape] case, the force to which reference is made is not the force inherent in the act of penetration but is the force used to overcome the resistance of the female. When the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant." Implicitly following such reasoning, we have consistently held that "[s]exual intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from use of drugs or other cause, or sleep, is rape. [Cits.]" Paul v. State, 144 Ga.App. 106(2), 240 S.E.2d 600 (1977). Accord Brown v. State, 174 Ga.App. 913, 331 S.E.2d 891 (1985).

Being only five years old, the victim in the case before us was legally as incapable of giving her consent to the defendant's actions as if she had been asleep or drugged. Therefore, in my view, proof of penetration itself constitutes proof of...