Hicks v. State, F-83-263

• Decision Date: 07 January 1986
• Docket Number: No. F-83-263,F-83-263
• Citation: 713 P.2d 18
• Parties: Troy Lee HICKS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 18

713 P.2d 18

Troy Lee HICKS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-263.

Court of Criminal Appeals of Oklahoma.

Jan. 7, 1986.

As Corrected Jan. 15, 1986.

Thomas G. Smith, Jr., Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

The appellant, Troy Lee Hicks, was charged by information in the District Court of Tulsa County, Case No. CRF-82-1394, with the detestable and abominable crime against nature (oral-vaginal copulation), in violation of 21 O.S.1981, § 886 and Burglary in the First Degree, in violation of 21 O.S.1981, § 1431. He was convicted on each count and sentenced respectively to three (3) years' and seven (7) years' imprisonment.

We reverse the conviction for crime against nature but affirm the judgment and sentence for burglary in the first degree.

On February 13, 1982, G.K.M. and her daughter, M.M., were asleep on a couch in their Tulsa Apartment when G.K.M. was attacked by the appellant. G.K.M. and appellant struggled from the living room to the hallway, as M.M. joined in the fray. During the attack, appellant attempted to undress G.K.M., and managed to fondle her. G.K.M. finally yielded to appellant's threats and sent M.M. to a neighbor's apartment. Appellant then placed his mouth on G.K.M.'s vagina, but was startled just seconds later by a noise in the living room. He fled through a bedroom window as G.K.M. ran to a neighbor's apartment.

At trial, two neighbors were called to corroborate part of G.K.M.'s testimony. Appellant took the stand and claimed alibi as his defense. He also called three witnesses on his behalf.

I.

We turn our attention first to appellant's conviction for the detestable and abominable crime against nature, inasmuch as that conviction must be reversed.

Appellant's first argument in this regard is that 21 O.S.1981, § 886 is unconstitutionally vague. For many years this writer has been of the opinion that section 886 is unconstitutional on vagueness grounds. See Canfield v. State, 506 P.2d 987, 989 (Okl.Cr.1973) (Brett, J., concurring in part, dissenting in part). My view has not changed. However, I have been unable to persuade a majority of my colleagues to adopt my view. Despite my strong personal discomfort regarding the constitutionality of this statute, I believe my personal view must take a backseat to principles of stare decisis. See Clayton v. State, 695 P.2d 3 (Okl.Cr.1984). Therefore, based on previous precedent by a majority of this Court, appellant's constitutional claim is without merit.

Notwithstanding the constitutionality of the statute, we find that appellant's conviction for this crime must be reversed. We determine the State failed to present sufficient evidence to prove the essential element of penetration. 21 O.S.1981, § 887.

Although the proof offered by the State showed appellant, after a difficult struggle with the victim and her daughter, placed his mouth on the victim's vagina for some six to ten seconds, there was no evidence of penetration of the vagina. While it is true that cunnilingus constitutes the crime against nature, it is equally true, under 21 O.S.1981, § 887, that the crime against nature requires "sexual penetration, however slight."

It is truly unfortunate that the Oklahoma Legislature has not seen fit to rewrite the antiquated statutes that make sodomy a crime. Its use of "delicate" language complicates the enforcement of the crime. First of all, the vague language has been made comprehensible and therefore constitutional only by case law. And today a conviction must be reversed because the penetration requirement was written to encompass all crimes against nature without regard to whether penetration should be an element of the specific type of sodomy involved. Of course penetration should be required to prove bestiality. But should not forcible cunnilingus and fellatio be considered criminal acts even though no penetration is accomplished?

Under our present statutes, no conviction for the crime of sodomy can stand without proof of penetration. We are therefore compelled to reverse appellant's conviction for the crime against nature due to insufficient evidence of this element.

II.

Appellant also raises four additional assignments of error he claims affect the validity of the burglary conviction. He first attacks the validity of M.M.'s testimony. This assignment of error is predicated on three grounds. First, appellant claims M.M., a nine-year-old deaf-mute child, was incompetent to testify. Second, it is contended the trial court improperly questioned M.M. about the identification of appellant. Third, appellant claims the person used to interpret M.M.'s testimony was not properly qualified or given the necessary oath.

Title 12 O.S.1981, § 2601 provides, "Every person is competent to be a witness except as otherwise provided in this code." Nowhere in the code is a child excluded from giving testimony simply because of age or physical infirmity. In Davis v. State, 647 P.2d 450 (Okl.Cr.1982), we determined a child witness is competent to testify when it is demonstrated the child knows what it means to tell the truth, has taken an oath, and has personal knowledge concerning the offense. The record before this Court shows M.M. was able to distinguish truth from fiction and was sworn. Her testimony demonstrates she had personal knowledge of the crime. We accordingly reject this argument.

We also reject appellant's assertion the trial court erred in questioning M.M. before the jury. Title 12 O.S.1981, § 2614 vests the trial court with the authority to interrogate any witness. The only limitation placed on the trial judge is that he may not indicate to the jury his view of the issues in contention. See Lott v. State, 586 P.2d 70 (Okl.Cr.1978). The record in this case indicates the trial court's questions were entirely proper.

Appellant next claims the trial court erred in its failure to establish the qualifications of M.M.'s court interpreter or to compel the interpreter to take the required oath or affirmation. 12 O.S.1981, § 2604. If the defendant believed the interpreter was incapable of accurately translating, he was entitled to show that the interpretations were incorrect by direct examination or independent testimony. See Claycomb v. State, 22 Okl.Cr. 315, 211 P. 429 (1923). Since he did not, any error was waived. The right to have the interpreter sworn was also waived since the defendant knew she was not sworn but made no objection until after the verdict. See Pitman v. State, 487 P.2d 716 (Okl.Cr.1971); Gibbons v. Territory, 5 Okl.Cr....