Aрpellant, Melvin Russell Daniel, appeals his judgment of conviction for aggravated sodomy, his sentence, and the denial of his motion for new trial.
Appellant was convicted of the aggravated anal sodomy of his niece who, on the date of the incident, was either eleven or twelve years of age. The trial court allowed, over objection, the introduction of evidence of similar transactions between appellant and the victim and between appellant and his daughter. Appellant has asserted three enumerations of error. Held:
1. Appellant asserts thаt the trial court erred in allowing evidence of similar transactions to be introduced in evidence. We disagree. Thе
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evidence introduced meets the two-prong test of
Anderson v. State,
2. Appellant asserts that the trial court erred in denying appеllant’s motion for directed verdict.
“[A] motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.”
Taylor v. State,
Appellаnt asserts that in prosecuting the aggravated sodomy offense the State utterly failed to prove that actual fоrce was used against the victim. We disagree. Force may be proved by direct or circumstantial evidence. Thе record shows that appellant had engaged in repetitive acts of sexual misconduct against the victim, that previously he had uttered a veiled threat to the victim that “your dad would kill
us
if he knew,” or words to that effect, and that the victim wаs afraid of him and scared. (Emphasis supplied.) The victim testified that as she was growing up the one person she trusted and “thought he really cared” was the appellant, but when she learned that what he was doing was “wrong” she became scared. The record also affirmatively reflects that concurrently with the commission of the criminal act, appellant “kept trying to turn [her] over.” In addition the record affirmatively reflects that although the victim could not observe whether actual penetration of her rectum occurred, “the next day [she] was
real
sore.” (Emphasis supplied.) We are satisfied that from this circumstantial evidence the court clearly could infer that appellant had applied actual force, both by physical means and by mental coercion and intimidation, to the victim during the com
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mission of the criminal act.
Richardson v. State,
Reviewing the transcript in a light most favorable to the jury’s verdict, we find ample evidence from which any rational trier of fact cоuld have found beyond a reasonable doubt that appellant was guilty of the offense charged.
Jackson v. Virginia,
3. Appellant asserts that the trial court erred in its charge to the jury concerning the issue of force. The court charged the jury of thе effect of committing an act of sodomy with a person not capable of expressing an intelligent consеnt or dissent, and further instructed inter alia that it is necessary for the State to prove the defendant used force to сommit the act of sodomy; that in cases of incapacity to consent, the element of force is automаtically supplied by law; a child under the age of fourteen cannot consent to any sexual act; sexual acts directed to a child are in law forcible and against the will; and, “[t]he question of the mentality of the alleged victim is one for you, the jury to determine with all the facts and circumstances of this case.” (Emphasis supplied.)
Examining the charges in their entirety,
Hambrick v. State,
Moreover, the questioned charge when examined in toto clearly plаced within the jury’s hands the issue of the victim’s mental capability to give an informed consent to the crime.
We further find Drake v. State, supra, to be distinguishable from the facts before us. Drake was a forciblе rape case. The case sub judice involves the criminal act of forcible sodomy — an act historically recognized by the law as a so-called unnatural act or act against nature. See, e.g., Carter, supra at 22 (3); 81 CJS, Sodomy, §§ 1 & 2. Accordingly, we need not determine the extent to which Drake is still controlling in cases оf rape in view of the Supreme Court’s recent holding in Richardson and in Cooper. Suffice it to say that Drake was published in 1977, and that since that time medical science has confirmed that AIDS, a fatal disease, is often contracted by sexual trans *498 mission, and that anal intercourse, in particular, places the recipient at “high risk,” thus creating an entirely new dimension to the legal question of intelligent or informed consent to a sexual act by a child. Accordingly, we are satisfied that sexual acts of anаl sodomy directed to a child of age eleven or twelve are, in law, both forcible and against the will. Richardson, supra at 747 (2); Cooper, supra at 631 (2); Carter, supra; cf. Houston, supra.
Hines v. State,
Judgment affirmed.