Cooper v. State , 180 Ga. App. 37 ( 1986 )

Benham, Judge,

dissenting.

Few, if any, criminal acts consume reasonable men with more disgust and utter abhorrence than the sexual abuse of children. Despite our feelings, since we as a nation prefer the rule of law over giving vent to our emotions, I am obliged to say that a fair reading of the majority opinion leaves me with undispelled qualms which cause me to dissent.

1. Even though the facts as outlined by the majority opinion are abhorrent, we cannot let abhorrence alone be the light unto our path. When our duty is clear our resolve must be firm. Our light must come from the legal principles embodied in Hines v. State, 173 Ga. App. 657 (327 SE2d 786) (1985), and Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977), and not from our emotions. Though the majority opinion refers to these cases, it quickly wanders off the correct azimuth and begins a discussion of the history of sex cases. While the historical perspective is interesting, it is of no moment in view of the Supreme Court’s clear ruling on this issue in Drake v. State, supra. Stated in an unembellished manner, the issue is whether “force” is to be presumed when the sexual act of sodomy takes place between a child of tender age and an adult, thereby making every act of sodomy with a child aggravated sodomy. The majority says “yes,” citing cases from 1852 to 1945. Stephen v. State, 11 Ga. 225 (15) (1852); Gosha v. State, 56 Ga. 36 (1) (1876); Gore v. State, 119 Ga. 418 (46 SE 671) (1903); Brown v. State, 138 Ga. 814 (1) (76 SE 379) (1912); Morrow v. State, 13 Ga. App. 189 (79 SE 63) (1913); Smith v. State, 161 Ga. 421 (131 SE 163) (1925); Mitchell v. State, 190 Ga. 571 (9 SE2d 892) (1940); Evans v. State, 67 Ga. App. 631 (21 SE2d 336) (1942); Whitaker v. State, 199 Ga. 344 (34 SE2d 499) (1945). Noticeably absent is any reference to Carter v. State, 122 Ga. App. 21 (176 SE2d 238) (1970).

I say “no,” citing only the Supreme Court’s definitive ruling on the issue in Drake v. State, supra. The majority chooses not to follow Hines v. State, supra, which relies on Drake, since it is a two-judge case and supposedly has no binding precedential value. The binding issue aside, Hines has value for the light it sheds on the subject. OCGA § 16-6-2 (a) provides: “A person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the other person.”

While Drake concerns forcible rape, the language is no less compelling in an aggravated sodomy case which also requires force. Drake, at 233-234, states the following unequivocally: “[I]t will perhaps seem plain that... we erred in affirming a forcible rape conviction on a jury charge to the effect that when an act of sexual intercourse with a girl under 14 is shown, ‘the law supplies the essential element of force’ . . . That was incorrect ... If the state desires to convict a defendant of forcible rape, it must prove the element of force by acts of force [or mental coercion] — age has nothing to do with it. Considerations of ‘consent’ and ‘force’ and ‘against her will’ are irrelevant in a statutory rape case, and the age of the victim is irrelevant in a forcible rape case except insofar as it may show her incapable of giving consent and thereby supply the ‘against her will’ element. Force must also be shown. . . .”

In the case-in-chief, the majority calmly states, “In our view the language used by the Supreme Court in Drake, supra, concerning the irrelevancy of age with regard to force . . . was unnecessary since force was found.” Having discarded the clear language of Drake as surplusage, the majority makes the quantum leap from reason to rationalization by stating, “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.” Such an interpretation amounts to the re-writing of a criminal statute, which is a legislative and not a judicial function. The soundness of the Drake decision in disavowing the use of a presumption to supply the essential element of force in a criminal case is evident in the language at 234: “Were the contrary true — that the victim’s age supplies the element of force — then as a practical matter no one would be convicted of statutory rape because the state’s case making out statutory rape also would make out forcible rape.”

The United States Supreme Court has also refused to embrace any approach that allows a presumption to supply an essential element of a criminal offense as being impermissibly burden shifting. Francis v. Franklin, 471 U. S.__(105 SC 1965, 85 LE2d 344) (1985); Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979). Finding this enumeration to have merit, I would reverse the conviction.

2. Appellant next contends that it was error to fail to charge on aggravated child molestation. OCGA § 16-6-4 (c) specifically provides: “A person commits the offense of aggravated child molestation when he commits an offense of child molestation which results in physical injury to the child or involves an act of sodomy.” The majority’s affirmance of the conviction in Division 2 has as its undergirding the belief that the issue of aggravated child molestation was not reasonably raised under the facts.

Since I would reverse the conviction for aggravated sodomy due to the absence of evidence of force, I would also consider it reversible error to refuse to charge on aggravated child molestation. “It is an elementary principle of criminal procedure, that no person can be convicted of any offense not charged in the indictment. There may, of course, be a conviction of a lesser offense than that expressly named in the indictment, where the former is necessarily included in the latter, and also in some cases in which the lesser is not so included in the greater offense but where the language used in the indictment is sufficient to embrace the smaller offense.” Goldin v. State, 104 Ga. 549, 550 (30 SE 749) (1898).

I am authorized to state that Judge Carley joins in Division 1 of this dissent.

Decided July 15, 1986 Rehearing denied July 30, 1986 William Rhymer, for appellant. Timothy G. Madison, District Attorney, T. David Motes, Assistant District Attorney, for appellee.