Cooper v. State

256 Ga. 631 (1987) 352 S.E.2d 382

COOPER
v.
THE STATE.

43780.

Supreme Court of Georgia.

Decided January 28, 1987.

William Rhymer, for appellant.

Timothy G. Madison, District Attorney, T. David Motes, John G. Wilbanks, Jr., Assistant District Attorneys, for appellee.

WELTNER, Justice.

James Wallace Cooper was found guilty of aggravated sodomy and sentenced to a term of twenty years in the penitentiary. The Court of Appeals affirmed his conviction. Cooper v. State, 180 Ga. App. 37 (348 SE2d 486) (1986). We granted Cooper's application for certiorari to consider the elements of the crime of aggravated sodomy, as defined by OCGA § 16-6-2, in light of the holding in Drake v. State, 239 Ga. 232 (236 SE2d 748) (1977).

The victim in this case was a five-year-old female who had been left with Cooper at the home of her grandmother. Cooper was eighteen years of age. From the evidence it could be found that Cooper placed his penis in the victim's anus, and that as a result of this contact, the victim became infected with a venereal disease. The testimony of the victim fails to indicate that she resisted Cooper, or that Cooper used physical force to accomplish the act.

1. Cooper contends that, under the authority of Drake, supra, his conviction must be reversed, as there was no evidence that he employed physical force to overcome resistance from the five-year-old victim.

Drake, supra, was a forcible rape case, the victim being the nine-year-old daughter of the defendant. In that case we upheld a conviction because the element of force was supplied by the child's fear that her father would beat either her or her mother if she resisted his advances.

2. A five-year-old child cannot consent to any sexual act. See McFall v. State, 235 Ga. 105, 106 (218 SE2d 839) (1975); Drake, supra. Sexual acts directed to such a child are, in law, forcible and against the will. Carter v. State, 122 Ga. App. 21 (176 SE2d 238) (1970).

3. Cooper assigns as error the trial court's refusal to charge on request, as a lesser-included offense, the elements of child molestation as defined by OCGA § 16-6-4. Under the evidence in this case, such a charge would have been inappropriate, as the victim testified that Cooper did the act, and Cooper denied it. There was no error.

Judgment affirmed. All the Justices concur.