Clayborn v. State
| Decision Date | 07 March 1983 |
| Docket Number | No. CR,CR |
| Citation | 647 S.W.2d 433,278 Ark. 533 |
| Parties | Avery CLAYBORN, Appellant, v. STATE of Arkansas, Appellee. 82-123. |
| Court | Arkansas Supreme Court |
Jeffrey M. Rosenzweig, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for appellee.
Appellant was charged by information with burglary and rape by deviate sexual activity. He was found guilty of both crimes but appeals only from the conviction of rape by deviate sexual activity. He was sentenced to imprisonment for life and jurisdiction is in this Court pursuant to Rule 29(1)(b). The appeal is meritorious.
Ark.Stat.Ann. § 41-1803 (Repl.1977), in pertinent part, provides that either of two different types of conduct can constitute the crime of rape Rape--(1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion ...
(Emphasis added.) Here, the information charged appellant with rape by forcibly engaging in deviate sexual activity. Deviate sexual activity is defined by statute as "any act of sexual gratification involving: (b) the penetration, however slight, of the vagina or anus of one person by any body member or foreign instrument manipulated by another person." Ark.Stat.Ann. § 41-1801(1)(b). The proof at trial was insufficient to sustain the charge of rape by deviate sexual activity as the crime is defined. The only evidence relating to such a form of rape was the prosecutrix's testimony that "he jerked my panties off and began to lick my bottom." There was no evidence that appellant's tongue penetrated the prosecutrix's vagina or her anus. Yet, the testimony of the prosecutrix, a retired nurse, aptly demonstrated her thorough knowledge of human anatomy. Manifestly, the State failed to prove the crime charged, rape by deviate sexual activity.
The information did not charge appellant with the crime of rape by forcible sexual intercourse. That type of rape is statutorily defined as the "penetration, however slight, of a vagina by a penis." Ark.Stat.Ann. § 41-1801(9). The detailed and specific testimony by the prosecutrix leaves no doubt that appellant was guilty of rape in this nature. She testified "he made me hold the labia, get hold of it and hold it open for me to get his penis inside of me." Nonetheless, the State at no time sought to amend the information to correctly describe the nature of the rape which was committed. See Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). Subsequently, the appellant made a timely objection to the variance between the information and the proof and, in addition, moved for a directed verdict on the charge of rape by forcible deviate sexual activity. The trial court not only denied both motions but, over appellant's additional objection, instructed the jury on rape by forcible sexual intercourse, which had never been charged, and instructed the jury on rape by forcible deviate sexual activity, which was not proven. Since there was no proof of rape by deviate sexual activity the jury must have found the appellant guilty of rape by sexual intercourse, a crime with which appellant was never charged. The appellant correctly contends that he cannot be found guilty of a crime with which he was never charged.
The State makes two counter arguments. The first is that appellant was charged with forcible rape, proven guilty of forcible rape, convicted of forcible rape and therefore no fatal variance existed. That argument assumes a fallacious base because appellant was not solely charged with rape. If he had been charged only in general terms, then it might have been sufficient under our liberal rules of procedure, especially in the absence of a motion for a bill of particulars. But here appellant was charged with rape by forcibly engaging in deviate sexual activity. Such a charge includes the crimes formerly labelled by statute as sodomy and buggery, except for the bestiality aspect, and the penetration may be by finger, tongue or dildo.
The statute defining this crime, as distinguished from rape by sexual intercourse, contains no reference to the sex of either the offender or the victim. A neuter gender definition is essential since either a male or a female could be the victim or the perpetrator of this nature of rape. It includes homosexual conduct as well as most types of unnatural heterosexual conduct. See Commentary to Ark.Stat.Ann. §§ 41-1801 and -1803. Acts of deviate sexual activity have been judicially described as unnatural acts. Strum v. State, 168 Ark. 1012, 272 S.W. 359 (1925).
On the other hand, the crime of forcibly engaging in sexual intercourse has been separately defined and is limited to penetration of a vagina by a penis. Ark.Stat.Ann. § 41-1801(9). Obviously it is restricted to heterosexual conduct and, except for the forcible compulsion, is a natural sex act. The essential elements of the crimes differ.
The test for determining whether an information for one offense includes another is whether the offenses are of the same general character and whether the information for one offense contains all of the essential elements of the other. For example, in Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971), the defendant was charged with assault with a deadly weapon, a knife, with intent to kill. The proof developed that the assault was with a pistol. We held no variance occurred because only one crime was involved, assault with intent to kill. The distinguishing fact in this case and the case at bar is that essentially two different crimes are involved here. Where two different crimes are involved the defendant may not be, as here, charged with a crime and convicted of another. To sustain a conviction on the ground that the evidence supports a charge not made would be a sheer denial of due process. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).
The State's second argument is that the sexual intercourse proven in this case comes within the statutory definition of deviate sexual activity. The argument is without merit. Criminal statutes must be strictly construed. Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978). Under our prior law these criminal acts had separate names; rape by sexual intercourse was termed rape and rape by deviate sexual activity was termed sodomy or buggery. Under the Criminal Code of 1976 the separate criminal acts continue to be defined separately and they must be so construed.
The current statutory definitions of these crimes are derived from New York Penal Law § 130.00. See Commentary to Ark.Stat.Ann. § 41-1801 (Repl.1977). We note that the Appellate Division of the Supreme Court of New York stated: "The definition of deviate sexual activity does not refer to sexual intercourse in its ordinary meaning but refers to specific sexual conduct--contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva." People v. Griffith, 80 A.D.2d 590, 435 N.Y.S.2d 767 (1981). The two crimes are not the same. Forced sexual intercourse does not come within the crime of forced deviate sexual activity.
Reversed and remanded for a new trial.
To follow the reasoning of the two dissents in this case would soon lead to the abandonment of our laws and our Constitution. We are still a nation of laws but if we ever adopt the dissenting viewpoints we will no longer be. For almost two hundred years the Constitution of the United States has endured just such attacks as presented in the dissenting opinions. The Constitution of Arkansas has endured well over a hundred years of unsound and unwise attacks. I shall endeavor to defend our laws and constitutions so long as I occupy the bench on the Arkansas Supreme Court and shall continue thereafter as a private citizen.
This case is an outrage, not so much because a defendant guilty of rape is freed, but because all the actors in this matter, including ourselves, have miserably failed in our duty: To provide a system that fairly decides who has violated the rights of others and holds accountable the guilty as well as frees the innocent. The defendant in this case will probably be the most surprised of all. A system so inept as ours in this case will hardly deter him from future malfeasance. His argument is not that he is innocent of rape, because the State certainly proved that he forceably had sexual intercourse with the victim; his argument is that he did not do it exactly how he was charged. Justice Hays has addressed the case from an evidentiary standpoint and I will not add to his statement except to observe that the Commentary to Ark.Stat.Ann. § 41-1801(1)(b) says "deviate sexual activity is broad enough to embrace--common forms of deviate sexual behavior, fellation, cunnilingus, and anal intercourse." The victim, a seventy-eight year old woman, no doubt described in her own modest words the act of cunnilingus.
This statute was drafted to define all kinds of forceable rape, by whatever mode or method of sexual abuse; it was intended to define a physical violation of another's body, one more than a mere touching. It was drafted to leave no loopholes: Whether the violation is committed by a tongue, finger, or even an inanimate object, it is rape in the most serious degree if force is used. It actually makes no difference to the law, the victim, nor even the defendant, how he committed the act, it is the violation that is defined and prohibited. The majority's decision is not giving effect to the legislative intent; it is creating a loophole...
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