Opinion
8 Div. 548.
October 6, 1981. Rehearing Denied November 24, 1981.
Appeal from the Circuit Court, Morgan County, Newton B. Powell, J.
J.N. Powell, Decatur, for appellant.
Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
The defendant was indicted and convicted of sexual abuse in the first degree. Section 13A-6-66, Code of Alabama 1975 (Amended 1977). Sentence was two years' imprisonment.
The defendant contends that the evidence presented by the State of Alabama was insufficient to support his conviction. In order to sustain a conviction of sexual abuse in the first degree the evidence must prove that (1) a person, 16 years of age or older, (2) subjected another person under age 12 (3) to sexual contact. Section 13A-6-66. Sexual contact is defined as "(a)ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party." Section 13A-6-60 (3).
The defendant's argument is completely devoid of factual and legal merit. The State's evidence, if believed by the jury, is sufficient beyond any reasonable doubt to support the defendant's conviction.
The defendant was found lying on top of a three year old female child. The defendant's trousers were down around his ankles and he had an erection. The child was completely naked. The defendant was seen kissing the child on the side of her neck. The child's stepfather observed the defendant lying on top of the victim "moving in a fashion that a man ordinarily does when he is having sexual intercourse with a female." Under these circumstances we fail to see how the defendant can even begin to argue that the State failed to prove the element of sexual contact.
Despite the fact that no physical damage was done to the child, the depravity and perversity of the defendant's actions shock the conscience of this Court. We have searched the record and found no error prejudicial to the substantial rights of the defendant. The judgment of the Circuit Court is affirmed.
AFFIRMED.
All Judges concur.