C.A. 4th;
E065260

The Fourth Appellate District affirmed a judgment of conviction. The court held that a parent’s physical violence towards his young child, whom he also sexually abused, provided the element of force or fear necessary to support his conviction for aggravated sexual assault.

Edward Thomas was tried before a jury on charges of aggravated sexual assault on a child. The charges were based on Thomas’ alleged sexual abuse of his daughter over a period of 10 years, beginning when she was four or five years old. Thomas’ daughter, now an adult, testified not only to the sexual abuse she had suffered at Thomas’ hands, but also to physical abuse. She testified to repeatedly being beaten by Thomas, and to not telling anyone about the sexual abuse because she was afraid the beatings would get worse. She testified that the physical abuse made her afraid of Thomas throughout her childhood. She knew “never to cross him.” The jury found Thomas guilty as charged.

Thomas appealed, arguing the evidence failed to show his crimes were committed by “force, violence, duress, menace or fear of immediate and unlawful bodily injury.”

The court of appeal affirmed, holding that the victim’s testimony regarding being beaten by Thomas was sufficient to support the verdict. In order to find Thomas guilty of aggravated sexual assault, the jury had to find beyond a reasonable doubt that he used “enough physical force to overcome the other person’s will.” Thomas’s ongoing physical violence against the victim provided the requisite force. The victim was between four and 14 years old, and Thomas was her father. The incidents occurred when they were alone at home. The evidence demonstrated a vulnerable, isolated child who was compelled to participate in sex acts in response to parental authority and violent intimidation and not the result of freely given consent. Because of the victim’s young age at the time of the abuse and Thomas’s position of authority, she was particularly susceptible to being coerced. Although she did not expressly resist her father, Thomas’s ongoing violent conduct terrified her. The jury could reasonably have found that Thomas’ ongoing beatings constituted an implied threat of violence or danger if the victim did not submit to his sexual abuse. The evidence of physical violence, even if not committed in conjunction with the sexual assaults, was sufficient to support the jury’s verdict. Thomas’s remaining claim of ineffective assistance of counsel was similarly without merit.