In 2012, Eric Higdon, who was 17 years old, worked as an intern at Momma’s Place Christian Academy, a day-care facility. During that time, K.S., who was then four years old, was enrolled as a student at the day care. During August 2012, Higdon accompanied K.S. to the bathroom on multiple occasions. While in the bathroom, Higdon pulled down K.S.’s pants, touched K.S.’s penis, and performed oral sex on K.S. K.S. did not report Higdon’s actions. In August 2012, A.D., the parent of another child enrolled in the day-care facility, filed a police report alleging that Higdon had performed similar acts on her son. A.D. contacted K.S.’s mother, K.W., to alert her to the allegations against Higdon. K.W. asked K.S. if anyone had touched him inappropriately. K.S. told her that Higdon had touched him.

Higdon was convicted of first-degree sodomy of a child less than 12 years old and first-degree sodomy by forcible compulsion. He was sentenced to concurrent sentences of 23 years in prison for first-degree sodomy of a child less than 12 years old and 15 years for first-degree sodomy by forcible compulsion. appealed. Affirmed in part; reversed in part. Ala. Code 1975, § 13A-6-63(a) provides that a person commits the crime of sodomy in the first degree if he engages in sexual intercourse with another person by forcible compulsion. Section §13A-6-60(8) of the Code of Alabama, defines “forcible compulsion” as a “physical force that overcomes earnest resistance or a threat, express or implied, that places another person in fear of immediate death or serious physical injury to himself or another person.”

In this case, the State failed to present any evidence that Higdon used physical force that overcame K.S.’s earnest resistance. Moreover, the State failed to present any evidence that Higdon made an express threat that “placed K.S. in fear of immediate death or serious physical injury to himself or another person.” In Powe v. State, the Alabama Supreme Court held that an implied threat can be inferred in cases concerning the sexual assault of children by adults with whom the children are in a relationship of trust. In Ex parte J.A.P., 853 So.2d 280 (Ala. 2002), however, the Court clarified that the Powe holding would apply only in cases involving the sexual assault of children by adults who exercised positions of domination and control over the children. In this case, Higdon was only 17 years old when the alleged acts occurred. “Thus, an implied threat may not be inferred as a result of his position as an intern at the day-care facility.” Additionally, an age discrepancy cannot constitute an implied threat. Higdon’s conviction based on the charge of first-degree sodomy by forcible compulsion was reversed. His conviction for first-degree sodomy of a child less than 12 years old was affirmed.