Johnny Williams was convicted of rape and incest upon his natural daughter.1 He appeals after the denial of his amended motion for new trial, alleging insufficiency of the evidence, the admission of certain testimony by the trial court, and ineffective assistance of counsel. Finding no error, we affirm. 1. In his first and second enumerations of error, Williams asserts insufficiency of the evidence of rape with respect to the elements of force and lack of consent.2 Under OCGA § 16-6-1 a, a person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. In State v. Collins , 270 Ga. 42 508 SE2d 390 1998, the Supreme Court of Georgia recently reiterated that the terms “forcibly” and “against her will” are two separate elements of proving rape. The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. The state must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim’s age. However, the quantum of evidence to prove force against a child is minimal , since physical force is not required. Intimidation may substitute for force. Further, force may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is force, and may be shown by the prosecutrix’s state of mind from her prior experience with appellant and subjective apprehension of danger from him. Citations and punctuation omitted. Pollard v. State , 260 Ga. App. 540, 542-543 3 580 SE2d 337 2003.3 Here, the victim claimed at trial in 20074 that she remembered nothing, and she denied that her father had had intercourse with her, despite her pregnancy and DNA testing showing that Williams was the father of her child. In addition, a videotape recording of her 2002 interview with a police detective was played for the jury. In that recording, the victim stated that when her father first had intercourse with her, “of course, I objected to it.” She responded affirmatively to the question, “Did he ever tell you not to tell or try to coerce you or threaten you” saying, “Yeah. He says —he says don’t tell.” She added that he told her “he pays for our roof being over my head so kind of like I am obligated you know.” He also kept her dependent by taking “every single dime” she earned from her employment. She felt as though “I don’t have a choice.”
“As an element of both rape and aggravated sodomy, force may be inferred by evidence of intimidation arising from the familial relationship, and may be proved by direct or circumstantial evidence. Lack of resistance, induced by fear, is not legally cognizable consent.” Citations, punctuation, and footnotes omitted. Williams v. State , 284 Ga. App. 255, 256-257 1 a, b 643 SE2d 749 2007. And “lack of resistance, induced by fear, is force, and may be shown by the victim’s state of mind from her prior experience with the defendant and subjective apprehension of danger from him.” Citations and punctuation omitted. Siharath v. State , 246 Ga. App. 736, 739 2 541 SE2d 71 2000.
