State v. Beishir

• Decision Date: 23 February 1983
• Docket Number: No. 64133,64133
• Citation: 646 S.W.2d 74
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald L. BEISHIR, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 74

646 S.W.2d 74

STATE of Missouri, Plaintiff-Respondent, v. Donald L. BEISHIR, Defendant-Appellant.

No. 64133.

Supreme Court of Missouri En Banc.

Feb. 23, 1983.

Jerry W. Venters, Jefferson City, for defendant-appellant.

John Ashcroft, Atty. Gen., John Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

ALMON H. MAUS, Special Judge.

A jury found the defendant guilty of deviate sexual intercourse with his 7-year-old stepdaughter in violation of § 566.060.1(2). As a persistent offender he was sentenced by the court to imprisonment for 25 years. By one of his seven points on appeal he asserts § 566.060 violates the state and federal constitutions. For this reason his appeal was transferred to this court. Mo. Const. art. V, § 3.

On September 13, 1980, the defendant and his wife Claudette lived in a house in Jefferson City. Her two daughters by a previous marriage, then 7 and 10 years of age, lived with them. After getting off work at 2:00 p.m. that day Claudette joined the defendant at a bar. After spending the afternoon drinking they went home. The girls were provided a McDonald's meal. The mother and stepfather, the latter accompanied by a six-pack, drove to Columbia for their evening meal. The little girls were left to fend for themselves.

The defendant and Claudette returned to Jefferson City for an evening of more drinking in local bars. At one the defendant scuffled with a patron who was said to have insulted Claudette. In the vicinity of midnight the defendant, leaving Claudette in a bar, returned to the house.

His two stepdaughters were sleeping in a downstairs bedroom. The younger girl testified he took her to another bedroom. There he removed her clothing and laid her on the bed. He removed his clothing, lay on the bed and forced, by hitting her, the child to sit on his chest. He touched her private parts with his hand and tongue. He forced her to touch his private parts with her hands and tongue. The older child awakened, heard the hitting and crying and surreptitiously left the house and went to the home of a neighbor. The police were called and soon arrived. The defendant answered his door naked. He was told the reason for the officers' presence. He said to let him put on some pants. He soon reopened the door clad in jeans. At first the defendant was docile, but later became belligerent. He attempted to choke one of the officers and get his revolver. The youngest child was found in her bed, to which the defendant had ordered her, crying, wrapped in a sheet. The defendant does not question the sufficiency of the evidence.

The defendant's attack upon the constitutionality of the sodomy statute is not the same as the attack upon the old statute considered in State v. Crawford, 478 S.W.2d 314 (Mo.1972), cert. denied, 409 U.S. 811, 93 S.Ct. 176, 34 L.Ed.2d 66 (1972), nor as the attack upon § 566.060 considered in State v. Hermanns, Mo., 641 S.W.2d 768 (1982). The defendant's astute and diligent appointed counsel levies a new attack. He asserts the defendant is denied the equal protection of the laws and due process of law in violation of the Fifth Amendment and the Fourteenth Amendment to the Constitution of the United States and article I, § 18(a) of the Constitution of Missouri (1945) for two separately stated, but interdependent reasons. He correctly observes that § 566.060 does not expressly prescribe a culpable mental state in relation to the prohibited act. He notes that § 562.021.2 provides that, except as provided in § 562.026, "if the definition of an offense does not expressly prescribe a culpable mental state, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly or recklessly, but criminal negligence is not sufficient." Then he asserts that one cannot commit a crime without a criminal intent. This is followed by the apparently very logical argument that a person cannot recklessly commit deviate sexual intercourse. Therefore, he reasons the statute does not adequately advise him of the nature of the crime. He further reasons that to "permit the conviction of a person for the offense of sodomy on the basis of 'recklessness' is tantamount to a conviction in the absence of any culpable mental state whatsoever." It is for these reasons he contends § 566.060 is unconstitutional. The state, with a superficial response, asserts that by reason of § 562.021.2 the mental state required for the commission of sodomy is "established if a person acts purposely, knowingly or recklessly" and that is constitutionally sufficient. Neither argument is controlling. The ethereal and somewhat theoretical language of The Criminal Code, effective January 1, 1979, to a large measure drawn from The Model Penal Code, must be construed in the light of the realities of the criminal act condemned.

A criminal offense is usually defined in terms of an act that is committed with a culpable mental state. It is often said that a culpable mental state, such as an intent, with nothing more, cannot be made a crime. This proposition is preserved by that part of § 562.011 that reads as follows: "A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act." However, the defendant's assertion that a crime must be a voluntary act committed with some designated mental state, be it maliciously, wickedly, purposely, knowingly or recklessly, is not correct. "Generally speaking, it is within the power of the legislature to declare an act criminal irrespective of the intent or knowledge of the doer. Due process is not violated by the fact that mens rea is not a required element of a crime, or the fact that a person is punished for an act in violation of the law, though ignorant of the facts making it so." 21 Am.Jur.2d Criminal Law § 138 (1981). This principle has found the following expression by the Supreme Court of the United States: "Still, it is doubtless competent for the States to create strict criminal liabilities by defining criminal offenses without any element of scienter--though even where no freedom-of-expression question is involved, there is precedent in this Court that this power is not without limitations." Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205, 209 (1959). There is no need to burden this opinion with an extended discussion of such limitations and the doctrines of mens rea and crimes malum in se as distinguished from malum prohibitum. Suffice it to say there is no constitutional limitation that prevents a state from imposing strict criminal liability upon a voluntary act of sodomy upon a child less than fourteen years old. The applicable principle has been succinctly expressed by this Court at an early date. "But, when an act forbidden by law is intentionally done, the intent to do the act is the criminal intent, which imparts to it the character of the offense; and no one who violates a law which he is conclusively presumed to know can be heard to say he had no criminal intent in doing it." State v. Silva, 130 Mo. 440, 464, 32 S.W. 1007, 1014 (1895). Also see State v. McLarty, 414 S.W.2d 315 (Mo.1967); LaFave & Scott, Criminal Law § 31 (1972).

This principle is yet recognized in The Criminal Code. Section 562.021.2 in part reads as follows: "Except as provided in Section 562.026 if the definition of an offense does not expressly prescribe a culpable mental state, a culpable mental state is nonetheless required and is established if a person acts purposely or knowingly or recklessly, but criminal negligence is not sufficient." The portion of § 562.026 applicable to this case reads as follows: "A culpable mental state is not required ... if the statute defining the offense clearly indicates a purpose to dispense with the requirement of any culpable mental state as to a specific element of the offense." (Emphasis added). These sections are a restatement of the principles applicable under the prior law. "Whether or not criminal intent or knowledge is an element ... is a matter of statutory construction to be determined in a given case by considering the subject matter of the prohibition as well as the language of the statute, and thus ascertaining the intention of the legislature." State v. Page, 395 S.W.2d 146, 149 (Mo.1965). The principles stated in decisions under the prior law are helpful in applying the applicable portions of The Criminal Code. State v. McLarty, supra. The principles usually applied are discussed at length in LaFave & Scott, Criminal Law, supra.

The Model Penal Code is based upon the premise that the requirement of a culpable mental state is to be considered in respect to each element of an offense. This is true in regard to whether or not a culpable mental state is required, as well as a determination of what culpable mental state is required. See Model Penal Code § 2.02, Comment (Tent. Draft No. 4, 1955). The portion of § 562.026 emphasized above makes it clear that premise is at least in part retained in The Criminal Code.

The crime for which the defendant was convicted is defined as follows: "A person commits the crime of sodomy if ... [h]e has deviate sexual intercourse with another person who is less than fourteen years old." § 566.060.1(2). As so defined, that offense consists of two elements, the voluntary physical act of deviate sexual intercourse and the fact that act occurred with a person who is less than fourteen years old. The language of that section construed in the light of the remainder of The Criminal Code, pre-code decisions, and the nature of the crime, "clearly indicates a purpose to dispense with the requirement of any culpable mental state" in regard to the voluntary physical act of deviate sexual intercourse.

This is established by several factors, including the following. The absence of any language in § 566.060 prescribing a culpable mental state. State v. McLarty, supra; LaFave & Scott, Criminal Law, sup...