The evidence also presented a jury question as to whether the sexual contact was by forcible compulsion. Daniels v. State, 437 So.2d 614 (Ala.Cr.App. 1983). In a consideration of the evidence, "no one is in a better position" to determine the issues of force and consent than the jury.
In the absence of a showing of abuse of discretion by the trial court, this court will not disturb the trial court's ruling. Daniels v. State, 437 So.2d 614 (Ala.Cr.App. 1983); Dawkins v. State, 455 So.2d 220, 221 (Ala.Cr.App. 1984); Carroll v. State, 445 So.2d 952, 954 (Ala.Cr.App. 1983); King v. State, 435 So.2d 769, 770 (Ala.Cr.App. 1983). Under certain circumstances, the refusal by the trial court to grant a motion for continuance so that retained counsel could be present does not constitute an abuse of discretion. United States v. Barrentine, 591 F.2d 1069 (5th Cir.), cert. denied, 444 U.S. 990, 100 S.Ct. 521, 62 L.Ed.2d 419 (1979); Canada v. State, 421 So.2d 140 (Ala.Cr.App. 1982).
The evidence, when taken as a whole and viewed in a light most favorable to the prosecution, establishes that the act of intercourse was accomplished by the use of force. See State v. Kester, 38 Wn. App. 590, 594, 686 P.2d 1081 (1984) ("forcible compulsion" is antonym of "consent"); Daniels v. State, 437 So.2d 614, 617 (Ala. Crim. App. 1983) (evidence of minor bruises on victim's legs after sexual contact presented a jury question as to whether intercourse was by forcible compulsion where victim was raped in her jail cell and testified her attacker held her down and that she did not scream; the defendant testified act was consensual). We cannot say that, based on the evidence presented, no reasonable finder of fact could conclude that the force exercised here was more than is required to achieve penetration and was directed toward overcoming the victim's resistance.
See Pittman v. State, 460 So.2d 232 (Ala.Crim.App. 1984) (force required in first degree rape is "necessarily relative" in finding forcible compulsion. Id. at 235); Robinson v. State, 444 So.2d 902 (Ala.Crim.App. 1984); Daniels v. State, 437 So.2d 614 (Ala.Crim.App. 1983); Davenport v. State, 426 So.2d 473 (Ala.Crim.App. 1982). For cases reaching similar results in other jurisdictions which apply a forcible compulsion standard see Salsman v. Commonwealth, 565 S.W.2d 638 (Ky.Ct.App. 1978) (earnest resistance "requires more than token initial resistance but less than showing that the victim was physically incapable of additional struggle against his assailant," id. at 641); State v. White, 651 S.W.2d 509 (Mo.App. 1983) (circumstances must be taken into account, id. at 511); Peeple v. Bianchi, 55 A.D.2d 993, 391 N.Y.S.2d 29 (1977); Commonwealth v. Biggs, 320 Pa. Super. 265, 467 A.2d 31 (1983). On the facts of this case, as previously stated, we find that the element of forcible compulsion was sufficiently proven, in that there was evidence that appellant exercised physical force which overcame the victim's earnest resistance.
Generally, it is not within the province of this Court to review a sentence imposed within the limits defined by statute. Daniels v. State, 437 So.2d 614, 618 (Ala.Cr.App. 1983). The three-year sentence was not unconstitutionally disproportionate to the crime under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).
The trial court's sentence was within the range of punishment applicable to second-time D.U.I. offenders and therefore not within the province of this court to review. Daniels v. State, 437 So.2d 614 (Ala.Crim.App. 1983); Wallace v. State, 408 So.2d 171 (Ala.Crim.App. 1981), cert. denied, 408 So.2d 173 (Ala. 1982). We have reviewed the contentions of error raised by appellant and also searched the record and find no error prejudicial to the substantial rights of appellant.