Brewer v. State

44 Citing cases

  1. Luke v. Battle

    275 Ga. 370 (Ga. 2002)   Cited 15 times
    In Luke, the Georgia Supreme Court afforded full retroactive effect to Brewer v. State, 271 Ga. 605, 607, 523 S.E.2d 18 (1999), a case in which it had reinterpreted Georgia's aggravated sodomy statute to add a force requirement.

    Accordingly, we reverse the habeas court's judgment and remand the case to it for proceedings consistent with this opinion. 271 Ga. 605, 607 ( 523 S.E.2d 18) (1999). See Taylor v. State, 262 Ga. 584, 586 ( 422 S.E.2d 430) (1992);Teague v. Lane, 489 U.S. 288, 310-311 ( 109 S.Ct. 1060, 103 L.Ed.2d 334) (1989).

  2. Mitchell v. State

    706 S.E.2d 223 (Ga. Ct. App. 2011)

    1. Mitchell first challenges his conviction on the aggravated sodomy counts, arguing that the State failed to prove that he perpetrated the acts of oral and anal sodomy on his three male victims, who ranged in age from seven to nine years, forcibly and against their will. See Brewer v. State, 271 Ga. 605 ( 523 SE2d 18) (1999). Effective July 1, 2000, the General Assembly amended OCGA § 16-6-2 (a) (2) so that it now provides that aggravated sodomy is committed either when acts of sodomy are committed with force and against the will of the victim or "with a person who is less than ten years of age."

  3. Melton v. State

    282 Ga. App. 685 (Ga. Ct. App. 2006)   Cited 33 times
    Holding that State may retry defendant on a specific charge "without violating the Double Jeopardy Clause, because there was sufficient evidence at trial to support that conviction"

    Consequently, the fact that aggravated sodomy has, as a matter of law, a lesser included offense (sodomy) is a critical distinction between rape and aggravated sodomy that precludes the State from using evidence of constructive force to prove aggravated sodomy. In Brewer v. State, 271 Ga. 605, 606 ( 523 SE2d 18) (1999), the Supreme Court of Georgia ruled that the State must prove actual force when prosecuting a defendant for the aggravated sodomy of a victim under the age of consent. In explaining its ruling, the Court acknowledged that the legislature had enacted a separate statute, aggravated child molestation, OCGA § 16-6-4 (c), which criminalized sodomy with an underage victim when there was no evidence of force and which carried a less harsh punishment than aggravated sodomy.

  4. Pace v. State

    274 Ga. 69 (Ga. 2001)   Cited 9 times

    See Perkinson v. State, 273 Ga. 491, 495, n. 2 ( 542 S.E.2d 92) (2001). See Hyman v. State, 272 Ga. 492, 496 ( 531 S.E.2d 708) (2000); Brewer v. State, 271 Ga. 605, 606, 608 ( 523 S.E.2d 18) (1999).Brewer, 271 Ga. at 608.

  5. Thurmond v. State

    353 Ga. App. 506 (Ga. Ct. App. 2020)   Cited 5 times
    Noting that OCGA § 42-8-34.1, which was adopted in 1988, provides that the standard for proving a probation violation is a preponderance of the evidence and disapproving of Glenn to the extent it held that only "slight evidence" of violation of the probation sentence was necessary to justify revocation of probation, as was the law before the Code section was adopted

    Within the meaning of the aggravated sodomy statute, the term "force" means "acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation" such as would be "sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to [oneself] or others."(Citation and punctuation omitted.) Brewer v. State , 271 Ga. 605, 607, 608, 523 S.E.2d 18 (1999). To prove aggravated sodomy in cases involving victims who are above the age of consent but unable to consent due to mental incompetency or intoxication by drugs or alcohol, this Court has held that the State must show actual force (not constructive force).

  6. Howard v. State

    281 Ga. App. 797 (Ga. Ct. App. 2006)   Cited 24 times
    Rejecting post-conviction attack on indictment for child molestation which gave dates between which the acts of molestation occurred

    She testified: Brewer v. State, 271 Ga. 605, 607 ( 523 SE2d 18) (1999). Q. Okay. Tell us about the first time you remember you-all having sexual contact. What happened; how did it come about?

  7. Chancey v. State

    258 Ga. App. 716 (Ga. Ct. App. 2002)   Cited 3 times

    Chancey argues that this charge is erroneous and in conflict with Brewer v. State. In Brewer, the Supreme Court held that the state must prove force even if the victim is underage. 271 Ga. 605, 523 S.E.2d 18 (1999). Id. at 606, 523 S.E.2d 18.

  8. Adams v. the State

    288 Ga. 695 (Ga. 2011)   Cited 42 times
    Holding Graham inapplicable to term-of-years sentences

    To the contrary, that statute "'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.' [Cit.]" Luke v. State, 222 Ga. App. 203, 205(1) (b) ( 474 SE2d 49) (1996), overruled on other grounds, Brewer v. State, 271 Ga. 605, 607 ( 523 SE2d 18) (1999). See also K. M. S. v. State of Ga., supra (taking this language from the Committee Notes).

  9. Thompson v. Stinson

    611 S.E.2d 29 (Ga. 2005)   Cited 1 times

    Nonetheless, even if that exception to the procedural bar rule is applied, it does not warrant the relief Stinson sought in the habeas court; the victim testified that she submitted to Stinson's desires because she believed that if she did not, he would physically hurt her, which, in the context of Stinson's words and actions, constituted a reasonable fear. See Brewer v. State, 271 Ga. 605, 607-608 (2) ( 523 SE2d 18) (1999). Judgment reversed. All the Justices concur.

  10. Heidler v. State

    273 Ga. 54 (Ga. 2000)   Cited 62 times   1 Legal Analyses
    Holding that the erroneous qualifying of a potential juror is harmless if he or she was not among those potential jurors from which the jurors who actually deliberated were selected

    Contrary to Heidler's assertion on appeal, this charge did not instruct the jury to presume force when a person under the legal age of consent is sodomized. By its terms, the instruction relates only to the presumption of an underage victim's lack of consent, and it constitutes a correct statement of the law in that regard. See Brewer v. State, 271 Ga. 605, 606 ( 523 S.E.2d 18) (1999); State v. Collins, 270 Ga. 42-43 ( 508 S.E.2d 390) (1998). 13. Heidler never requested a charge on theft by taking and manslaughter as lesser-included offenses of burglary and murder respectively, and the trial court did not err by failing to charge on those crimes sua sponte.