This case requires us to apply the decision of the Supreme Court of Georgia in Humphrey v. Wilson. 1 In Humphrey , a majority of the Supreme Court concluded as a matter of law that, based on the facts and circumstances of the case, a mandatory minimum sentence of ten years in prison with no possibility of parole, as well as registration as a sex offender,2 constituted cruel and unusual punishment for a 17-year-old defendant convicted of the aggravated child molestation of a 15-year-old victim.3 In response to the Humphreydissent’s prescient warning that the decision could entitle numerous other defendants to be discharged from custody,4 the Supreme Court set up standards to be considered in determining if the facts and circumstances of a case were sufficiently similar to those in Humphrey so as to require a similar result.5 Here, we apply those standards to the case of John Michael Morris, who was 15 years old at the time he committed the aggravated child molestation of his 13-year-old brother, A. M., by having A. M. place his mouth on Morris’ penis.6 Morris was also accused of child molestation pursuant to OCGA § 16-6-4 a, for placing his hand on A. M.’s penis, but the jury found Morris not guilty of that offense. Morris appeals from his conviction claiming, among other things, that his sentence to a mandatory ten years in prison with no possibility of parole constituted cruel and unusual punishment. We transferred the appeal to the Supreme Court of Georgia to consider Morris’ constitutional challenge,7 but the Supreme Court returned the appeal to us, finding that “the application of Humphrey to the facts of this case does not invoke the Supreme Court’s constitutional question jurisdiction.” Because we find that Humphrey requires that Morris’ sentence be set aside, we reverse and remand the case to the trial court with direction to dismiss the proceedings against Morris. On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys a presumption of innocence; moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.8 So viewed, the evidence shows that in November 2004, Morris returned to live in his family’s home in Columbia County after spending a year at a residential treatment facility for children with emotional problems. Morris’ mother had a boyfriend in North Carolina, and she testified that when she was in North Carolina to stay with her boyfriend, she left her sons under the supervision of her estranged husband, who was the boys’ stepfather. The stepfather resided approximately 20-30 minutes away, but the mother testified that he would “come over and . . . make sure everything’s fine” with the boys. At some point in January or February 2005, at a time when the boys’ mother was in North Carolina and when Morris and A. M. were 15 and 13 years old, respectively, Morris asked A. M. to put Morris’ penis in his mouth, and A. M. complied.
After A. M. told his mother that he thought he might be “gay” because of sexual acts he committed with Morris, Morris’ mother contacted the police. Morris admitted that he had initiated oral sex with his brother on three occasions on unspecified dates in North Carolina and in Georgia.
