Following a jury trial, Carl Howard appeals his convictions for rape, incest, aggravated sodomy, aggravated sexual battery, and aggravated child molestation two counts. Howard argues that the trial court erred in i denying his special demurrer that focused on the lack of a specific date for the crimes, ii admitting expert testimony on child sexual abuse syndrome, iii denying his motion for a directed verdict of acquittal on the rape charge, iv failing to merge the incest and rape charges and the aggravated sodomy and aggravated child molestation charges, and v sentencing Howard for terms outside the statutory maximums. He further asserts he received ineffective assistance of counsel. We agree with Howard that due to the absence of any showing of force, the rape conviction should be reversed and that as conceded by the State resentencing is necessary on two of the other convictions to conform to statutory maximums. Howard’s other enumerations of error are either waived or without merit. Construed in favor of the verdict, see Matthiessen v. State ,1 the evidence shows that during the last two weeks of February 2003, 24-year-old Howard convinced his 15-year-old half-sister to engage in sexual intercourse with him, to perform oral sex on him, and to allow him to perform oral sex on her. He also inserted his finger into her private part. When his sister later disclosed these events to others, Howard was arrested and charged with rape, incest, aggravated sodomy, aggravated sexual battery, and two counts of aggravated child molestation. A jury found him guilty on all counts. During sentencing, the judge orally merged the aggravated sodomy count into the related aggravated child molestation count and sentenced Howard to 20 years on the rape count and to 25 years on each of the remaining counts all sentences to be served concurrently. Although otherwise consistent with the oral sentence, the written sentencing order merged the aggravated sodomy count into the rape count rather than into the aggravated child molestation count. Howard appeals.
1. Howard first claims that the trial court erred in denying his special demurrer, in which Howard sought to quash the indictment for failure to identify specific dates for the alleged crimes. The indictment alleged that the sexual misconduct occurred between November 5, 2002 and February 28, 2003. At the hearing on the special demurrer three months prior to trial, the State presented no evidence but simply told the trial court that it could not give more specific dates, on which statement the court relied in denying the special demurrer. Nevertheless, in the similar transaction hearing that took place that same day immediately following the special demurrer hearing, the State put the victim on the stand, who testified that the sexual misconduct occurred only during the latter half of February 2003.
