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KING v. THE STATE.
S95A0155.
BENHAM, Presiding Justice.
OCGA 166216-6-2; constitutional question. Polk Superior Court. Before Judge Fudger.
Ronald King was convicted of sodomy and child molestation with the victims being his two stepdaughters. He was sentenced on each count to a five-year prison sentence and ten years' probation, with the sentences running concurrently. His appeal to this Court consists of three constitutional attacks on the sodomy statute: that it violates the Eighth Amendment's prohibition against cruel and unusual punishment; the Ninth Amendment's right to privacy; and the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments. Finding appellant's assertions to be without merit, we affirm his convictions.
1. The victim of the child molestation charge testified that appellant had seated her on his lap and fondled her genitalia several times, starting shortly after his marriage to her mother in August 1989 when she was 11. The evidence was sufficient to authorize a rational trier of fact to conclude that appellant was guilty of child molestation beyond a reasonable doubt. OCGA 16-6-4 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The 16-year-old victim of the sodomy charge testified that she had, on several occasions, placed her mouth upon appellant's sex organ, with the last time being the evening before law enforcement authorities intervened. Appellant admitted to an officer that the 16-year-old had placed her mouth on his sex organ. This evidence was sufficient to authorize appellant's conviction for sodomy. OCGA 16-6-2 (a). Jackson v. Virginia, supra.
3. Appellant posits that enforcement of the sodomy statute against a consenting heterosexual couple violates the Ninth Amendment's protection of the right to privacy and intimate association. We do not reach this issue because no factfinder has established that appellant's 16-year-old stepdaughter was a willing participant in the acts. See Ray v. State, supra; Gordon v. State, supra.
4. Appellant maintains that OCGA 16-6-2 violates the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments because it is selectively enforced against unmarried persons, and "victims" are not prosecuted for engaging in the consensual conduct. Since appellant has not established in the record the actual manner of enforcement of the sodomy law, he has not proved his contention that the statute is selectively enforced. Ray v. State, supra; Gordon v. State, supra.
James R. Osborne, District Attorney, Donald N. Wilson, Assistant District Attorney, for appellee.
Mundy & Gammage, B. Jean Crane, for appellant.
DECIDED JUNE 5, 1995.
Thursday May 21 08:14 EDT


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