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, 180 Ga. App. 37, 38-39 (1) ( 348 S.E.2d 486) (1986), aff'd 256 Ga. 631 ( 352 S.E.2d 382) (1987). We are compelled, though, in light of more recent appellate decisions, to examine the holding in Drake that lack of consent, but not force, is established by proof of the victim's age.

DECIDED JANUARY 28, 1987. Certiorari to the Court of Appeals of Georgia — 180 Ga. App. 37. William Rhymer, for appellant.

Accordingly, we overrule Cooper v. State, supra, to the extent that it holds that one who commits an act of sodomy against an underage victim is, without more, guilty of aggravated sodomy. The following is a non-exhaustive list of Court of Appeals decisions which we also overrule: Patterson v. State, 237 Ga. App. 80, 83 (5) ( 514 S.E.2d 873) (1999); Luke v. State, 222 Ga. App. 203 (1) ( 474 S.E.2d 49) (1996); Bullock v. State, 202 Ga. App. 65, 66 (2) ( 413 S.E.2d 219) (1991); Daniel v. State, 194 Ga. App. 495, 497 (3) ( 391 S.E.2d 128) (1990); Huggins v. State, 192 Ga. App. 820 (1) ( 386 S.E.2d 703) (1989); Cooper v. State, 180 Ga. App. 37 (1) ( 348 S.E.2d 486) (1986); Carter v. State, 122 Ga. App. 21 (1) ( 176 S.E.2d 238) (1970). The term "force" or "`forcibly' means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation."

However, in a forcible rape case where the victim indicates consent and does not resist, but by reason of mental retardation she is incapable of intelligently consenting, the lack of actual force necessary to overcome a resistant victim in other cases is supplied constructively by the rule that no more force need be used than that necessary to effect the penetration made by the defendant. Cooper v. State, 180 Ga. App. 37, 38 ( 348 S.E.2d 486) (1986); Drake v. State, 239 Ga. 232, 233-235 ( 236 S.E.2d 748) (1977); Durr v. State, 229 Ga. App. 103, 104 ( 493 S.E.2d 210) (1997). Since force in a case of this nature is not actual but constructive, it does not negate a defense of mistake of fact as to consent.

Id. at 234-235. (2) Then, this Court in Cooper v. State, 180 Ga. App. 37 ( 348 S.E.2d 486) (" Cooper I"), analogized the above language of Drake to a situation involving a child victim, because such victim is unable to give consent to the act. This Court determined that "in rape (and perforce in sodomy) the force necessary to overcome the victim's resistance was the force meant by the statute.

See Drake, supra at 232-234 (1), stating lack of consent in a forcible rape case may be shown by proving the victim was younger than the age of consent, but force must be shown by evidence of acts of force, mental coercion, or incapacity (based on factors other than age) of the victim. Drake was criticized in Luke, supra at 203-206 (1) (a), (b) and Cooper v. State, 180 Ga. App. 37, 38-39 (1) ( 348 S.E.2d 486) (1986), but has not been overruled. Without explicitly ruling on Brown's motion, the judge proceeded to charge the jury on forcible rape, statutory rape, and criminal attempt.

Because there was evidence of force in this case, we do not reach the issue of the requirement of "force" in rape cases involving child victims. See Luke v. State, 222 Ga. App. 203 ( 474 S.E.2d 49) (1996); Cooper v. State, 180 Ga. App. 37 (1) ( 348 S.E.2d 486) (1986), aff'd 256 Ga. 631 ( 352 S.E.2d 382) (1987); but see Hill v. State, 246 Ga. 402, 405 (3) ( 271 S.E.2d 802) (1980); Drake v. State, 239 Ga. 232 (1) ( 236 S.E.2d 748) (1977). Moreover, apart from the requirements of OCGA § 16-6-1, statutory rape under OCGA § 16-6-3 requires that the victim be under the age of 16 years and not be the spouse of the perpetrator.

Accordingly, a rational trier of fact could find from the evidence adduced at trial proof of Morgan's guilt beyond a reasonable doubt of aggravated child molestation, Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979), and the court's denial of the motion for directed verdict was proper. See McGuire v. State, 209 Ga. App. 813, 814 (1) (a) ( 434 S.E.2d 802) (1993); Wimpey v. State, 180 Ga. App. 529, 530 (2) ( 349 S.E.2d 773) (1986); Cooper v. State, 180 Ga. App. 37 (1) ( 348 S.E.2d 486) (1986). 3. Citing OCGA § 24-3-16 and Sosebee v. State, 257 Ga. 298 ( 357 S.E.2d 562) (1987), Morgan argues that the trial court erred in denying his motion to strike the hearsay testimony of several of the State's witnesses after the victim stated on direct examination that she did not want to talk about the incident.

Hines v. State, 173 Ga. App. 657 ( 327 S.E.2d 786), being a two-judge decision, has value only as "physical precedent" and is not now binding on this court. Court of Appeals Rule 35 (b); Cooper v. State, 180 Ga. App. 37, 39 ( 348 S.E.2d 486). Moreover, the facts as to force in this case are different than those in Hines where there was no evidence of force.

Richardson, supra; Cooper, supra. Hines v. State, 173 Ga. App. 657 (2) ( 327 S.E.2d 786) (1985), does not require a different result inasmuch as it is without precedential value since one judge on the division concurred in judgment only (see Rule 35 (b) of the Rules of the Court of Appeals), and a majority of the Court of Appeals held it was without precedential value in Cooper v. State, 180 Ga. App. 37 ( 348 S.E.2d 486) (1986). In light of the above, there was sufficient evidence for a rational trier of fact to find appellant guilty of aggravated sodomy beyond a reasonable doubt ( Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979); Richardson v. State, supra), and it was not error for the trial court to deny appellant's motion for a directed verdict of acquittal on that count.