Willie Antonio Thurmond v. State, 838 S.E.2d 592

Thurmond pled guilty to criminal trespass and received 12 months supervised probation with a condition to obey all laws.
In Jan. 2019 the State alleged Thurmond committed aggravated sodomy of a 21‑year‑old man and filed a petition to revoke probation.
Victim testified he was heavily intoxicated, fell asleep on a couch, then felt Thurmond touch and pull down his pants and perform oral sex; he fought Thurmond off and called police.
The trial court found by a preponderance of the evidence that Thurmond committed aggravated sodomy and revoked the remaining nine months of probation.
On appeal Thurmond challenged only whether the evidence proved the statutory element of "force" required for aggravated sodomy; the Court of Appeals found no actual force shown but concluded the evidence established the lesser included offense of sodomy.
The Court vacated the revocation order as to aggravated sodomy and remanded with direction to enter revocation based on sodomy; it also held notice of aggravated sodomy sufficed to raise the lesser included charge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence proved the element of "force" for aggravated sodomy	Victim's testimony that Thurmond pulled down his pants while he was asleep and performed oral sex shows force	No evidence of actual physical force, threats, or coercion; victim voluntarily intoxicated and no showing Thurmond caused incapacitation	Court: Insufficient proof of "force" by a preponderance; aggravated sodomy not established
Whether notice of aggravated sodomy sufficed to support revocation for lesser included sodomy	Notice of aggravated sodomy gave adequate notice of the factual basis supporting sodomy as a lesser included offense	(Thurmond implicitly argued insufficient basis to revoke on aggravated sodomy so lesser should not substitute)	Court: Notice was sufficient; remand to enter revocation based on sodomy

Brewer v. State, 271 Ga. 605 (definition of "force" and force as separate element for aggravated sodomy)
Melton v. State, 282 Ga. App. 685 (State must prove actual force, not constructive force, when victim over age of consent is incapacitated)
Boileau v. State, 285 Ga. App. 221 (minimal physical evidence — e.g., pulling down clothing of a child — can support a finding of force)
In re M.C., 322 Ga. App. 239 (pulling down pants of a minor held to supply evidence of force)
Conley v. State, 329 Ga. App. 96 (evidence of forcible conduct and attempts to silence a child supported forcible sodomy finding)
Handley v. State, 352 Ga. App. 106 (distinguished — defendant administered substances that rendered victim incapacitated, establishing force)
Wolcott v. State, 278 Ga. 664 (due process requires written notice of claimed probation violation)
Franklin v. State, 286 Ga. App. 288 (notice of greater offense can suffice to support revocation for lesser included offense)