Marcus Luke appeals his convictions of two counts of aggravated sodomy, OCGA § 16-6-2, two counts of aggravated child molestation, OCGA § 16-6-4 (c), and one count of child molestation, OCGA § 16-6-4 (a).
Construed to support the jury’s verdict, evidence was presented that on October 15, 1994, J. L., Luke’s. 13-year-old nephew, spent the night at Luke’s house. J. L. testified that sometime after midnight, he and Luke got into the back seat of Luke’s car, and in response to Luke’s requests, J. L. and Luke engaged in mutual masturbation. J. L. also testified that Luke performed oral sodomy on him, then instructed J. L. to do the same to him. He testified that Luke also placed his finger in his anus. While J. L. testified that he was not forced to do these acts, he stated that he did not want to do them. J. L. testified that he told Luke he had to go to the bathroom, got out of the car, and ran naked to his own home about a mile away. J. L.’s father testified that J. L. came home around 5:00 a.m., naked, cold, and out of breath and told him about the incident. J. L. testified that Luke had made him “jack him off” approximately three times before.
1. Relying on
Hines v. State,
We are not bound by
Hines
because one judge on the panel concurred in the judgment only. See Court of Appeals Rule 35 (b);
Cooper v. State,
(a) We note initially that both the rape and aggravated sodomy statutes require the State to establish that the crimes were committed with force and against the will of the victim. OCGA §§ 16-6-1; 16-6-2. Our courts, however, have defined inconsistently the method of establishing force in rape and sodomy cases. As noted above, in
Drake,
the Supreme Court held that consent but not force is established by proof of the victim’s age. In aggravated sodomy cases, this Court has routinely held that both elements — force, as well as lack of consent — are presumed when sexual acts are performed against children. In
Cooper v. State,
supra,
Subsequent cases have relied on the Supreme Court’s holding in
Cooper
and apparently have followed the reasoning set out in this Court’s opinion in
Cooper
that the proof of force in rape cases involving children differs from such proof in sodomy cases against children.
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Since
Cooper,
both the Supreme Court and this Court have consistently held that “[s]exual acts directed toward children are, in law, forcible and against the will. [Cit.]”
Richardson v. State,
(b) Our cases have not, however, defined “children.” We have not established with clarity the maximum age at which the element of force necessary to prove aggravated sodomy is presumed. We have held that the “against the will” or “lack of consent” element is supplied by proof that the victim is under age 14 because a victim of that age “ 'is incapable of consenting to illicit sexual acts with another.’ ”
Miles v. State,
Relying on OCGA § 16-3-1 as the measure of the age under which force is presumed yields inconsistent results in this case: Because J. L. was 13 at the time of the incident, his age is not sufficient to establish the element of force. But such proof
is
sufficient to prove the element of lack of consent. See, e.g.,
Miles,
supra. Nowhere in cases such as
Cooper
and
Huggins,
however, is it mandated that 13 is the age below which the element of force is automatically supplied; those cases use OCGA § 16-3-1 as one standard for determining the age under which force is presumed. That Code section is not dispositive of the issue. Its purpose is not to protect children under the age of 14 from illicit acts of others. Instead, “it simply raises a defense for [children under 13] because of the social desirability of protecting those no more than 12 years of age from the consequences of criminal guilt.”
K. M. S. v. State of Ga.,
Because the purpose of OCGA § 16-3-1 is not to protect child victims but to protect child perpetrators from the legal consequences of
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their own wrongdoing, and because its application leads to inconsistent results, we do not believe that OCGA § 16-3-1 should be used to set the age above which force may not be presumed. We are instead persuaded that the appropriate and logical age for such a presumption is the statutory “age of consent,” which in this case was 14.
2
Our opinion in
Cooper
supports this conclusion. As noted above, we stated there that “in one incapable of resisting or of consenting or dissenting there is no predicate in law for the showing of force as a reaction in resisting defendant.”
Because J. L. was under 14, the legal age of consent at the time the events involving Luke occurred, both the element of consent and the element of force were proved by evidence of his age. Hence, sufficient evidence was presented to enable a rational trier of fact to find Luke guilty of aggravated sodomy under the standard of
Jackson v. Virginia,
2. Luke also complains the evidence was insufficient to support his conviction for child molestation and aggravated child molestation on the ground that J. L.’s testimony was impeached. We disagree. Although J. L.’s testimony conflicted with statements he made to a Department of Family & Children Services employee, his credibility at trial was inherently an issue for jury determination. This Court cannot substitute its judgment on issues of credibility for that of the jury. See, e.g.,
Potts v. State,
3. Luke argues that evidence of similar transactions was erroneously admitted. A thirty-one-year-old witness testified that when he *207 was five or six years old, he was visiting at the home Luke shared with his father. Luke placed the witness’s hands in Luke’s pants and had the witness touch him on the penis. The witness stated that Luke also lowered the witness’s head to Luke’s penis, “one thing led to another,” and Luke ejaculated. The witness also testified that when he was about 18, while he and Luke were in Luke’s car, Luke attempted to get him to lay his head in Luke’s lap.
Luke argues that this evidence was not admissible because “the State merely mentioned evidence of state of mind, and [the] probability that the former transaction proves the latter.” The State introduced the similar transactions to show state of mind, intent, and modus operandi, all appropriate exceptions to the general rule of inadmissibility of similar transactions. See generally
Williams v. State,
Judgment affirmed.
Notes
We found the language in
Drake
“seized upon in
Hines”
to be dubious and also noted, as we have done in this case, that
Hines
was not binding authority.
At the time of the events in issue here, the law of this State provided that a child under the age of 14 could not legally consent to certain sexual acts. After Miles was decided (and after Luke was convicted), these statutes were amended to change, effective July 1, 1995, the operative age to 16. See OCGA § 16-6-3 (statutory rape), OCGA § 16-6-4 (child molestation and aggravated child molestation), and OCGA § 16-6-5 (enticing a child for indecent purposes).