Salyers v. State, F-85-582
| Decision Date | 27 April 1988 |
| Docket Number | No. F-85-582,F-85-582 |
| Citation | 1988 OK CR 88,755 P.2d 97 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
| Parties | Joanna SALYERS, Appellant, v. STATE of Oklahoma, Appellee. |
Joanna Salyers, appellant, was convicted of seven (7) counts of oral sodomy, two (2) counts of indecent or lewd acts with a child under sixteen, two (2) counts of aiding and abetting indecent liberties with a child under sixteen, one (1) count of aiding and abetting oral sodomy, one (1) count of aiding and abetting incest, and one (1) count of aiding and abetting first degree rape, in the District Court of Oklahoma County, Case No. CRF-84-4969, sentenced respectively on each count to ten (10) years, twenty (20) years, twenty (20) years, ten (10) years, ten (10) years and ninety-nine (99) years imprisonment, the sentences to run concurrently, and appeals. The judgments and sentences of imprisonment for twenty (20) years on each count of indecent or lewd acts with a child under sixteen (Counts 4, 14) and aiding and abetting indecent liberties with a child under sixteen (Counts 6, 12) are AFFIRMED. The judgments and sentences for oral sodomy (Counts 1, 2, 5, 9, 10, 11 and 13) and aiding and abetting oral sodomy (Count 7) are REVERSED and REMANDED with instructions to DISMISS. The judgments and sentences for aiding and abetting incest (Count 3) and aiding and abetting first degree rape (Count 8) are REVERSED and REMANDED for a NEW TRIAL.
William R. McKinney, Asst. Public Defender, Oklahoma City, for appellant.
Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.
Joanna Salyers, appellant, was tried by jury and convicted of seven (7) counts of Oral Sodomy (21 O.S.1981, § 886), two (2) counts of Indecent or Lewd Acts With a Minor Child Under Sixteen (21 O.S.1981, § 1123), two (2) counts of Aiding and Abetting Indecent Liberties with a Child Under Sixteen (21 O.S.1981, § 1123), one (1) count of Aiding and Abetting Oral Sodomy (21 O.S.1981, § 886), one (1) count of Aiding and Abetting Incest (21 O.S.1981, § 885), and one (1) count of Aiding and Abetting First Degree Rape (21 O.S.1981, § 1114), in Case No. CRF-84-4969, in the District Court of Oklahoma County, the Honorable Raymond Naifeh, District Judge, presiding. The jury set punishment at imprisonment for ten (10) years on each count of oral sodomy, twenty (20) years on each count of indecent or lewd acts with a child under sixteen and on aiding and abetting indecent liberties with a child under sixteen, ten (10) years on aiding and abetting oral sodomy and on aiding and abetting incest, and ninety-nine (99) years on aiding and abetting first degree rape. Judgments and sentences were imposed in accordance with the jury's verdict, the sentences to run concurrently. We reverse in part and affirm in part.
Appellant, her husband and eight minor children (four boys and four girls) moved to Oklahoma from South Carolina. In 1983, the family lived in an automobile repair shop operated by the father. Seven of the children slept in the work area of the shop, while the parents and one child slept in a small room off of the office.
In April of 1984, appellant's eldest son reported to a social worker at school that his sisters were being sexually molested by his father. Appellant confessed to the police and testified at trial that her husband forced her to participate in sexual acts with her minor daughters and raised the defense of duress. Appellant specifically admitted performing cunnilingus on her fifteen-year-old daughter and that she forced her fifteen-year-old daughter to perform cunnilingus on her. Appellant also admitted fondling her thirteen-year-old daughter's breasts, and sucking her fifteen-year-old daughter's breasts. Appellant denied any sexual misconduct on her nine and eleven-year-old daughters. Appellant also admitted taking photographs of two of her daughters while they were nude.
At trial, the testimony of the four minor daughters revealed appellant had placed her mouth on each of her minor daughters' vaginas and she had forced them to place their mouths on her vagina. The testimony revealed appellant had fondled and sucked her daughters' breasts and she had touched their vaginas. Additionally, the eleven-year-old daughter testified appellant had undressed her so that her father could have vaginal intercourse with the child. The child further testified her mother had taken her to a man's house, where he performed vaginal intercourse with her on four separate occasions, for which appellant was paid between $20 and $40 each time. Lastly, two of the daughters, aged eleven and thirteen, testified appellant made the thirteen-year-old place her mouth on the eleven-year-old girl's vagina.
For her first assignment of error, appellant asserts the State failed to prove the essential element of penetration to support a conviction for oral sodomy. Appellant relies on Hicks v. State, 713 P.2d 18, 20 (Okla,Crim.App.1986). The State relies on this writer's dissent in Hicks.
Appellant was convicted of oral sodomy under 21 O.S.1981, § 886. Cunnilingus, that is copulation per os, between two females is a violation of Section 886. Warner v. State, 489 P.2d 526, 527 (Okla.Crim.App.1971). In the instant case, the victims were minor daughters of appellant; therefore, Post v. State, 715 P.2d 1105, 1109 (Okla.Crim.App.1986), cert. denied 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986), is inapposite.
All crimes in Oklahoma are statutory. 21 O.S.1981, § 2. No act is a crime unless made so by statute. Griffin v. State, 357 P.2d 1040, 1046 (Okla.Crim.App.1960); State v. Stegall, 96 Okl.Cr. 281, 253 P.2d 183, 187 (1953). The matter of defining crimes and fixing the degrees of punishment is one of legislative power. Hunter v. State, 375 P.2d 357, 362 (Okla.Crim.App.1962). The essential elements of a crime are those set forth in the statutes defining the offense. State v. Layman, 357 P.2d 1022, 1031, 1033 (Okla.Crim.App.1960). The legislature, in 21 O.S.1981, § 887, made penetration, however slight, an essential element for copulation per os prosecuted under Section 886, and no conviction for the crime of oral sodomy can stand without proof of penetration. Hicks v. State, 713 P.2d 18, 20 (Okla.Crim.App.1986), Golden v. State, 695 P.2d 6, 7 (Okla.Crim.App.1985). In Hicks, my Brother Brett and I requested the legislature to rewrite the sodomy statutes to remove the antiquated requirement of penetration in cases of forcible cunnilingus and fellatio. As of this writing, the legislature has not done so. Therefore, penetration, however slight, remains an essential element for a conviction under Section 886 involving cunnilingus. Here, the prosecutor made no effort to introduce any evidence, either direct or circumstantial, proving the essential element of penetration. Nor did the trial court instruct the jury that penetration is an essential element of the offense. Under these circumstances, the alternative remedy of modification to the lesser included offense of assault to commit sodomy is not available. Hicks, 713 P.2d at 21. We have no alternative but to reverse and remand with instructions to dismiss the convictions of oral sodomy (Counts 1, 2, 5, 9, 10, 11, 13) and aiding and abetting oral sodomy (Count 7). See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978).
Appellant next asserts the trial court erred by failing to grant her motion for a new trial based upon newly discovered evidence. Appellant's eleven-year-old daughter testified at trial her father had vaginal intercourse with her. The child additionally testified her mother took her to a man's house for vaginal intercourse on four occasions. After appellant's trial which is the subject of this appeal, a different prosecutor had the eleven-year-old girl physically examined in preparation for trying appellant on another count of aiding and abetting first degree rape. The physician testified at the motion for a new trial he found the child's hymen was intact, he could not insert his finger in her vagina and had to use the smallest instrument available to examine her internally, and, in his opinion, the child had never had sexual intercourse. A second physician examined the child and confirmed her hymen was intact but could neither confirm nor deny previous sexual intercourse. The court heard and denied the motion for a new trial before...
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