Because that's not what his ruling was really about, but you know that because it was explained to you. You just refuse to understand it for some reason.
It certainly was about that. He said physical threat was not proven. A four year old is not able to decipher that.
Section 13A–6–63(a)(a), Ala.Code 1975, provides that “[a] person commits the crime of sodomy in the first degree if ․ [h]e engages in deviate sexual intercourse with another person by forcible compulsion.” Section 13A–6–60(8), Ala.Code 1975, defines forcible compulsion as a “[p]hysical force that overcomes earnest resistance or a threat, express or implied, that places another person in fear of immediate death or serious physical injury to himself or another person.”
In viewing the evidence in the light most favorable to the State, this Court must conclude that the State failed to “present any evidence that [Higdon] used physical force that overcame [K.S.'s] earnest resistance.” D.W. v. State, 3 So.3d 955, 957 (Ala.Crim.App.2008). Additionally, the State failed to present any evidence that Higdon made an express threat that “placed [K.S.] in fear of immediate death or serious physical injury to himself or another person.” § 13A–6–60(8), Ala.Code 1975.
The State asserts, however, that it presented sufficient evidence of an implied threat, citing the difference in age between Higdon and K.S. and Higdon's position as an intern at the day-care facility as factors sufficient to establish an implied threat. In Powe v. State, the Supreme Court of Alabama held that an implied threat may be inferred in cases “concerning the sexual assault of children by adults with whom the children are in a relationship of trust.” 597 So.2d 721, 728 (Ala.1991). In Ex parte J.A.P., however, the Supreme Court clarified that the holding in Powe “would apply only to cases involving the sexual assault of children by adults who exercised positions of domination and control over the children.” 853 So.2d 280, 284 (Ala.2002) (emphasis in original). See also D .W., 3 So.3d at 957. Although Higdon was in an apparent relationship of trust with K.S., he was 17 years old and not yet an adult at the time of the offense. Thus, an implied threat may not be inferred as a result of his position as an intern at the day-care facility. Additionally, this Court has held that an age discrepancy between the perpetrator and the victim does not constitute an implied threat. C.B.D. v. State, 81 So.3d 399, 402 (Ala.Crim.App.2011) (holding that age discrepancy and size discrepancy “do not establish any type of threatening communication”). Thus, the State's argument that it presented sufficient evidence of forcible compulsion by implied threat is without merit.
Because the State failed to present any evidence of physical force or threat of harm, it failed to establish an essential element of first-degree sodomy under § 13A–6–63(a)(1), Ala.Code 1975. Accordingly, Higdon's conviction based on the charge of first-degree sodomy by forcible compulsion must be reversed, and a judgment rendered in his favor on that charge. Higdon does not challenge his conviction for first-degree sodomy of a child less than 12 years old, see § 13A–6–63(a)(3), Ala.Code 1975; therefore, the circuit court's judgment as to that conviction is affirmed.
Again...........Eight other judges sided for the four year old. Judge Moore, no.
Isn't it unfortunate that the 4 year old victim did not understand what forcible compulsion was. If he had only attended law school he may have known how to protect himself from pervert lenient judges.
