DILLARD, P. J., GOBEIL and HODGES, JJ.
DILLARD, PRESIDING JUDGE.
a trial by jury, John Thomas Johnson was convicted of
aggravated sexual battery. Johnson appeals from this
conviction, arguing only that the evidence was insufficient
to sustain his conviction. For the reasons set forth
infra, we affirm.
in the light most favorable to the verdict,  the record shows
that the victim was friends with Johnson's adult son and,
on the afternoon of May 31, 2016, went to the house where
Johnson's son and ex-wife lived. The victim occasionally
socialized with Johnson's ex-wife and was doing so on the
day in question when Johnson invited his ex-wife over for a
beer at his house about two blocks away. The victim went
along too, and the three then drank alcohol and smoked
marijuana. But after consuming half a bottle of Jack Daniels
and some Wild Turkey, the victim began to feel sick.
Johnson's ex-wife was "scared for her" and
"majorly worried" that the victim might become
"deathly ill." As a result, Johnson and his ex-wife
helped the victim to the bathroom, where she vomited. They
then led the victim to the guest bedroom to lay down, where
she lost consciousness shortly thereafter. Johnson's
ex-wife stayed for a while, continuing to talk with Johnson
in the other room. Eventually, Johnson's ex-wife left to
go home and fix dinner; but before doing so, she warned
Johnson not to bother the victim,  stating, "don't
victim regained consciousness when she felt someone-who she
later realized was Johnson-lie down beside her on the
waterbed and begin rubbing her back. She then felt a hand
rubbing her bottom and unbuttoning her pants before digitally
penetrating her vagina. At that point, the disoriented victim
said "no" and grabbed Johnson's hand. Johnson
said "ok, ok," and rubbed the victim's back
again, before repeatedly telling her that he was going to
perform oral sex on her. The victim then became fully aware
of who was touching her and, when he again attempted to touch
her vagina, she moved his hand and got up from the bed.
victim went to find her phone, Johnson followed along and
attempted to calm her down. Understandably, she was afraid to
call the police in front of him, so she instead texted
Johnson's son, pleading with him to come get her.
Eventually, she walked away from the home on her own and
called Johnson's ex-wife. Johnson's ex-wife and his
son then picked the victim up in front of a church, and
immediately noticed that her pants were still unbuttoned, she
was not wearing shoes, she was "genuinely
distressed," and she was still intoxicated to the point
of slurring words.
was later tried for and convicted of aggravated sexual
battery, and the trial court denied his motion for new trial.
Now, he challenges only the sufficiency of the evidence.
appeal from a criminal conviction, we view the evidence in
"the light most favorable to the jury's verdict, and
the defendant is no longer presumed
innocent."Thus, in evaluating the sufficiency of the
evidence, we do not assess witness credibility or weigh the
evidence, but only determine "if the evidence was
sufficient for a rational trier of fact to find the defendant
guilty of the charged offenses beyond a reasonable
doubt." And the verdict will be upheld so long as
there is "some competent evidence, even though
contradicted, to support each fact necessary to make out the
State's case." With these guiding principles in mind,
we turn to Johnson's sole enumeration of error.
argues that the evidence was insufficient to prove him guilty
of the offense of aggravated sexual battery, which is
perpetrated when a person "intentionally penetrates with
a foreign object the sexual organ or anus of another person
without the consent of that person." Specifically,
Johnson claims that when he inserted his finger into the
victim's vagina, the encounter was consensual because she
was conscious and responded positively to his earlier
advances by arching her back to make herself more accessible.
But the victim definitively testified that, although her
initial instinct was that Johnson's touches felt good,
she was "so out of it," she "didn't know
what was going on at first," she only became fully
conscious and "realized something was wrong" when
"he went in," and she did not enjoy it when he made
contact with her vagina.
have previously explained, whether a victim consents to sex
is "a matter solely within the province of the
jury." And while a defendant
is not required to 'read the victim's mind' or
understand her internal thought processes; he is . . .
required not to impose sex upon her without her free consent.
Whether he did so is a question of intent, which the jury
determines according to the reasonableness of her testimony
as to lack of consent, not the reasonableness of her
context of forcible rape, the Supreme Court of Georgia has
held that when the State has proven beyond a reasonable doubt
that the victim is "physically or mentally unable to
give consent to the act, as when she is intoxicated, drugged,
or mentally incompetent, the requirement of force is found in
constructive force, that is, in the use of such force as is
necessary to effect the penetration made by the
defendant." Thus, sexual intercourse with a woman
whose "will is temporarily lost from intoxication or
unconsciousness arising from the use of drugs or other cause
or sleep is rape."
Although a majority of states do not criminalize conduct
when a victim has become voluntarily intoxicated by drugs or
Georgia is not such a state. Indeed, under our
well-established case law, when a victim is
"intoxicated, drugged, or mentally incompetent" and
her "will is temporarily lost from intoxication or
unconsciousness arising from the use of drugs or other
cause," she is "physically or mentally unable to
give consent to the act" of sexual intercourse. We see no reason
why this same logic should not apply to sexual battery. And
here, the State presented sufficient evidence by which the
jury was authorized to conclude that the victim was
intoxicated to the point her will was temporarily lost.
Indeed, the victim vomited, required assistance to walk, and
in light of the victim's level of intoxication in this
case, the jury was presented with evidence by which it could
determine that she was unable to consent to Johnson's act
of penetrating her vagina with his finger-i.e., that
he did so w ...