Thurmond v. State

• Decision Date: 29 January 2020
• Docket Number: A19A2007
• Citation: 838 S.E.2d 592,353 Ga.App. 506
• Parties: THURMOND v. The STATE.
• Court: Georgia Court of Appeals

353 Ga.App. 506

838 S.E.2d 592

THURMOND

v.The STATE.

A19A2007

Court of Appeals of Georgia.

January 29, 2020

William McLeod McIntosh, for Appellant.

William Washington Fleenor, Carroll Rudolph Chisholm Jr., for Appellee.

Rickman, Judge.

In this discretionary appeal, Willie Antonio Thurmond challenges the revocation of his probation. He contends that the trial court erred by finding that he committed the new offense of aggravated sodomy. For reasons that follow, we vacate the trial court’s revocation order and remand the case with direction.¹

The record shows that on December 18, 2018, Thurmond pled guilty to criminal trespass and was sentenced to 12 months of supervised probation. One of the conditions of Thurmond’s probation was that he obey all state, local, and federal laws. In January 2019, the State obtained a warrant for Thurmond’s arrest and filed a petition for revocation/modification of Thurmond’s probation based on his alleged commission of the new offense of aggravated sodomy.

At the probation revocation hearing, the victim, who was 21 years old at the time of the incident, testified that on the evening of January 4, 2019, he had a couple of drinks before going to a bar with a friend at approximately 11:00 p.m. While at the bar, the victim had a drink and met Thurmond for the first time. The victim and his friend then left and went to another bar. The victim was drinking mixed drinks that night and eventually lost count of how many drinks he had consumed. At approximately 2:30 a.m. the following day, the victim and his friend went to his friend’s apartment, and Thurmond went with them.

When they got to the apartment, the victim recalled that Thurmond gave him one drink that he "remember[ed] sipping on" and another that he spit out. The victim testified that he was very drunk, and that he threw up while he was at the apartment because of his alcohol consumption. Approximately 20 minutes after arriving at the apartment, the victim went to sleep on the couch. While he was sleeping, the victim felt Thurmond touch his penis, and he picked up his head but could not see because either his eyes were closed or he was "in between blackout and not blackout," so he put his head back down. Next, he felt Thurmond undoing his pants and pulling them down, followed by something wet on his penis, which he discovered was Thurmond’s mouth. At that point, the victim got up, asked Thurmond, "What are you doing?," and took a swing at him. The victim then tackled Thurmond, got on top of him, and began punching him. The victim did not recall Thurmond hitting him or using his fists, but testified that they eventually got into a struggle and the victim subsequently ran out of the apartment and called the police. The victim testified that he never gave Thurmond any indication that he would consent to "that kind of contact," referring to Thurmond’s contact with the victim’s penis.

Following the hearing, the trial court revoked the remaining nine months of Thurmond’s probation based on its finding by a preponderance of the evidence that Thurmond had violated the terms and conditions of his probation as alleged in the State’s petition. Thurmond subsequently filed an application for discretionary appeal in which he asserted that the trial court had erred in concluding that the victim’s testimony was sufficient to satisfy the "actual force" element of aggravated sodomy, and we granted that application.

Georgia’s conditions for revoking a probated sentence provide that "[a] court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged." OCGA § 42-8-34.1 (b).² And as a general rule, "this Court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court. Nevertheless, we review questions of law de novo." (Citations, punctuation, and emphasis omitted.) Ponder v. State , 341 Ga. App. 276, 277, 800 S.E.2d 19 (2017).

Thurmond contends that the trial court erred by finding that he committed the new offense of aggravated sodomy. He argues that the victim’s testimony was insufficient to show that the act of sodomy was committed with "force" as required by the aggravated sodomy statute.

"A person commits the offense of sodomy when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another." OCGA § 16-6-2 (a) (1). "A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person or when he or she commits sodomy with a person who is less than ten years of age." OCGA § 16-6-2 (a) (2). Thus, the crime of aggravated sodomy has three elements: (1) an act of sodomy; (2) with force; and (3) against the will of another person. Thurmond only contests the element of force.

Within the meaning of the aggravated sodomy statute, the term "force" means "acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation" such as would be "sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to [oneself] or others."(Citation and punctuation omitted.) Brewer v. State , 271 Ga. 605, 607, 608, 523 S.E.2d 18 (1999). To prove aggravated sodomy in cases involving victims who are above the age of consent but unable to consent due to mental incompetency or intoxication by drugs or alcohol, this Court has held that the State must show actual force (not constructive force). See Melton v. State , 282 Ga. App. 685, 694 (2) (c), 639 S.E.2d 411 (2006). We reached this conclusion because "allowing a presumption of force in aggravated sodomy cases based solely upon the victim’s ... incapacity to consent [due to mental incompetency or voluntary intoxication,] would undermine the existing sodomy statute, [which already criminalizes nonconsensual but unforced sodomy,] leaving it with very little practical purpose," and also "provid[e] greater protections for those victims than the protections given to victims of rape and aggravated sodomy who are between the ages of ten and sixteen." Id. at 693-694 (2) (c), 639 S.E.2d 411 ; see Haynes v. State , 326 Ga. App. 336, 338 (1), 756 S.E.2d 599 (2014) (State must prove the element of force to obtain a conviction for forcible rape of a victim over the age of ten but under the age of consent); Brewer , 271 Ga. at 606, 523 S.E.2d 18 (force is a separate essential element that the State must prove to obtain a conviction for aggravated sodomy against a victim under the age of consent); OCGA § 16-6-2 (a) (2) (amended after Brewer to provide that no evidence of force is required to prove aggravated sodomy if the victim is under the age of ten).

The trial court here concluded that the element of physical force was shown by evidence that the victim’s "pants were unzipped and ... pulled down" without his consent and while he was asleep. We disagree with that conclusion.

In Melton , 282 Ga. App. at 687, 692 (2) (c), 639 S.E.2d 411, this Court found no evidence that actual force was used where the mentally disabled victim testified that the defendant pulled off her clothes before performing two acts of sodomy. And in an aggravated sodomy case involving a minor, the Supreme Court found no force of any kind where the defendant admitted that he pulled down his stepdaughter’s panties prior to performing an act of sodomy. See Brewer , 271 Ga. at 607-608, 523 S.E.2d 18. This Court, however, has held that some evidence of physical force was presented by the defendant pulling down the pants of the victim in two cases involving minor victims. See In re M.C. , 322 Ga. App. 239, 242 (1), 744 S.E.2d 436 (2013), disapproved of on other grounds by Martin v. McLaughlin , 298 Ga. 44, 46 n.3, 779 S.E.2d 294 (2015) ; Boileau v. State , 285 Ga. App. 221, 223 (1) (a), 645 S.E.2d 577 (2007) ; see also Conley v. State , 329 Ga. App. 96, 99 (1), 763 S.E.2d 881 (2014) ("Given the evidence that Conley was referred to as ‘Uncle Barry,’ he forced Je. to touch his penis, he removed Je.’s underwear before molesting him, and he attempted to keep Je. silent, as well as evidence showing that Je. wanted the abuse to stop, the jury was authorized to conclude that Je. was forced to engage in oral sex. ..."). But "as with rape, only a minimal amount of evidence is necessary to prove that an act of sodomy against a child was forcible." (Citation and punctuation omitted.)

Boileau , 285 Ga. App. at 223 (1) (a), 645 S.E.2d 577. And, as previously stated, for a probation revocation, the State must prove a violation by a preponderance of the evidence, not...