                           FIFTH DIVISION
                          MCFADDEN, C. J.,
      MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    October 2, 2019




In the Court of Appeals of Georgia
 A19A1490. HANDLEY v. THE STATE.

      MCMILLIAN, Presiding Judge.

      John H. Handley appeals the trial court’s denial of his motion for new trial after

a jury convicted him of three counts of aggravated sodomy involving his 17-year-old

nephew.1 Handley argues on appeal that the evidence was insufficient to establish the

element of force as required to sustain his convictions for aggravated sodomy. We

disagree and affirm his convictions for the reasons explained below.




      1
        The jury also convicted Handley of one count of incest, but the trial court
reversed that conviction finding that the State did not prove beyond a reasonable
doubt that Handley was the victim’s uncle within the meaning of the incest statute,
as the evidence did not exclude the possibility that they were related by only half-
blood, a relation which does not support a conviction for incest. See Gordon v. State,
327 Ga. App. 774, 777 (1) (c) (761 SE2d 169) (2014); OCGA § 16-6-22.
      Viewed in the light most favorable to support the verdict,2 the evidence at trial

showed that Handley gave his 17-year-old nephew a ride from a convenience store

back to his grandmother’s house, where Handley lived. They stopped on the way to

buy some beer, and once home, they were watching televison in Handley’s bedroom.

After the nephew told Handley that he was not sleeping very well, Handley offered

him a pill and a peach-flavored alcoholic beverage, which the nephew accepted. The

nephew testified that he began to feel “out of it[,]” and he later told police that he was

drifting in and out of consciousness after consuming the alcohol and pill. Handley

concedes that while his nephew was under the influence of these substances, he

“engaged [the nephew] in three acts of sodomy to which [the nephew] did not

consent: one involving contact between Handley’s mouth and [the nephew’s] penis;

one involving contact between [the nephew’s] mouth and Handley’s penis; and one

involving Handley’s penis and [the nephew’s] anus.” The nephew reported Handley’s

actions to friends, family, and police the next day. He testified at trial about

experiencing these events and said that he was not able to fight off Handley because

“he just felt kind of odd” as a result of the alcohol and drugs. The State also presented

evidence that the nephew told the sexual assault nurse examiner (“SANE”) who

      2
          Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

                                            2
examined him the day after the assault that he “couldn’t move that much” after

ingesting the substances provided by Handley.

      As his sole argument on appeal from his convictions, Handley argues that the

evidence was insufficient to support the charges of aggravated sodomy because no

rational juror could have found the essential element of force to support the crime.

      When reviewing the sufficiency of the evidence, the proper standard for
      review is whether a rational trier of fact could have found the defendant
      guilty beyond a reasonable doubt. This Court does not reweigh evidence
      or resolve conflicts in testimony; instead, evidence is reviewed in a light
      most favorable to the verdict, with deference to the jury’s assessment of
      the weight and credibility of the evidence.


(Citations and punctuation omitted). Smith v. State, 304 Ga. 752, 754 (822 SE2d 220)

(2018).

      Georgia law defines sodomy as 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). Therefore, the crime of

aggravated sodomy has three elements: (1) an act of sodomy; ( 2) with force; and (3)


                                          3
against the will of another. Handley concedes that the State proved two of these

elements: that he engaged in three separate acts of sodomy involving his nephew and

that he did so without his nephew’s consent, i.e., against his will. Cf. Wynn v. State,

322 Ga. App. 66, 67 (1) (744 SE2d 64) (2013) (Under the rape statute, “[t]he term

‘against her will’ means without consent[.]”) (citation omitted). Therefore, the only

element Handley contests is force. He contends that the record is devoid of any

evidence of actual force and that evidence of constructive force based on the

nephew’s voluntary intoxication cannot be used to establish the crime of aggravated

sodomy.

      As this Court recently noted, “[a]lthough a majority of states do not criminalize

conduct when a victim has become voluntarily intoxicated by drugs or alcohol,

Georgia is not such a state.” (Footnotes omitted and emphasis in original.) Johnson

v. State, 2019 Ga. App. LEXIS 476, *5 (Case No. A19A1064, decided Aug. 23,

2019). Georgia courts have held that “[e]vidence of a victim’s inability to give

consent can be used to impute the element of force in certain sexual abuse cases

involving a victim who is intoxicated, drugged, or mentally incompetent.” Melton v.

State, 282 Ga. App. 685, 691 (2) (c) (639 SE2d 411) (2006). Moreover, Georgia law

recognizes that “[f]orce may be proved by direct or circumstantial evidence.”

                                          4
(Citation and punctuation omitted.) Conley v. State, 329 Ga. App. 96, 98 (2) (763

SE2d 881) (2014).

      Our Supreme Court has defined the term “force” in the context of sexual

offenses to mean “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.). Watson v.

State, 293 Ga. 817, 821 (2) (750 SE2d 143) (2013). See also Brewer v. State, 271 Ga.

605, 607 (523 SE2d 18) (1999). Additionally, this Court has found in the context of

aggravated sodomy that “[l]ack of resistance, induced by fear, is force.” (Citation

omitted.) Conley, 329 Ga. App. at 98 (2). See also Derr v. State, 239 Ga. 582 (1) (238

SE2d 355) (1977). The element of force for aggravated sodomy also “may be inferred

by evidence of intimidation arising from the familial relationship[.]” (Citations and

punctuation omitted.) Williams v. State, 284 Ga. App. 255, 256-257 (1) (a), (b) (643

SE2d 749) (2007). Each of these instances of force shares the common element of

overcoming or inhibiting a victim’s resistance to the defendant’s sexual assault. See

generally Lipham v. State, 257 Ga. 808, 809 (1) (b) (364 SE2d 840) (1988) (analyzing



                                          5
the issue of deadly force in a rape case in terms of its effect “to overcome the victim’s

resistance”).

      In this case, Handley gave his 17-year-old nephew alcohol and an unknown

drug in response to the nephew’s complaint that he was having trouble sleeping, and

the evidence shows these substances had the effect of causing the nephew to become

“out of it” and unable to move even though he was aware of Handley’s actions.

Although the nephew accepted these substances voluntarily, the jury was authorized

to conclude from the evidence that the nephew accepted them in an effort to help

himself sleep, that he was unaware of the effect the substances would have on him,

and that Handley provided the substances with the intent of rendering the nephew

incapable of resisting his sexual advances. We conclude that such findings would be

sufficient to establish the element of force to support Handley’s aggravated sodomy

convictions.3

      In reaching this conclusion, we find the Melton case, upon which Handley

relies, to be factually distinguishable. In Melton, the defendant was charged with two

      3
         We note that the SANE testified that during her physical examination, she
observed a small, shallow tear on the nephew’s anus, which she said was consistent
with his narrative of a non-consensual sexual encounter. However, she further
testified that the injury also could be consistent with a normal bodily function or
consensual sex.

                                           6
counts of aggravated sodomy involving a mentally disabled woman who consented

to acts of sodomy, but whom the State proved lacked the mental capacity to do so.

282 Ga. App. at 691-92 (2) (c). The State presented no evidence of actual force in

connection with the charges against Melton, and this Court held that the State could

not rely solely on the victim’s lack of mental capacity to show both lack of consent

and force to sustain defendant’s convictions for aggravated sodomy charges under

OCGA § 16-6-2 (a) (2). Rather, the Court held that the State was required to prove

force as a distinct element of the crime, and without such proof, the defendant’s

actions were punishable as sodomy under OCGA § 16-6-2 (a) (1), which does not

require proof of force. Id. at 692-93 (2) (c) See also Brewer, 271 Ga. at 607-08

(holding that State is required to prove actual force, although only minimal evidence

is required, as a separate element of an aggravated sodomy charge involving a child

under the age of consent).4

      In contrast to the defendant in Melton, Handley did not merely perform acts of

sodomy upon a victim who was incapable of consenting. Instead, he took affirmative


      4
         We note that after the Brewer case was decided, the General Assembly
amended OCGA § 16-2-2 to provide that an act of sodomy performed on a child less
than ten years of age constitutes aggravated sodomy, without requiring proof of force.
Ga. Laws 2000, p. 1346, § 1.

                                          7
action against his victim, supplying him with a drug and alcohol that rendered him

incapable of consenting and overcame his ability to resist. Handley’s actions had the

same effect as other types of actual force recognized in Georgia, and we accordingly

affirm his convictions for aggravated sodomy.

      Judgment affirmed. McFadden, C. J., and Senior Appellate Judge Herbert E.

Phipps concur.




                                         8
