State v. Fields

• Decision Date: 17 November 1987
• Docket Number: No. 69378,69378
• Citation: 739 S.W.2d 700
• Parties: STATE of Missouri, Respondent, v. Lee Arthur FIELDS, Appellant.
• Court: Missouri Supreme Court

Page 700

739 S.W.2d 700

STATE of Missouri, Respondent, v.Lee Arthur FIELDS, Appellant.

No. 69378.

Supreme Court of Missouri En Banc.

Nov. 17, 1987.

Maria V. Perron, Asst. Public Defender, Clayton, for appellant.

William L. Webster, Atty. Gen., Donna Richards-Crosswhite, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant, Lee Arthur Fields was convicted of two counts of rape, § 566.030.3, RSMoSupp.1984 and three counts of sodomy, § 566.060.3, RSMoSupp.1984.Appellant was sentenced to concurrent sentences of 15 years for the two counts of rape and consecutive sentences of eight years for each count of sodomy.Appellant appealed from the convictions of rape and sodomy.The Eastern District affirmed in a memorandum opinion.Rule 30.25(b).We transferred the cause and examine as if on original appeal.Mo. Const. art. V, § 10.We affirm.

I

In early July, 1985, Joyce Fields, wife of appellant, observed that her daughters S____, then 13 and B____ then 12, displayed unusual behavior when appellant, their stepfather would come home.Two days before taking her daughters to the police, B____ told Mrs. Fields that appellant had been "messing with her, touching her."S____ agreed with B____.

On July 8, 1985, Mrs. Fields took S____ and B____ to the Pine Lawn Police Department.At that time, William Ostendorf, detective with the St. Louis County Police Juvenile Unit, and Suzanne McCune, investigator for the Child Abuse Neglect Intake Unit of the Missouri Division of Family Services, interviewed both girls.Detective Robert Thompson of the St. Louis County Police, Juvenile Unit was also present, but did not conduct the interview.At appellant's trial, Ms. McCune testified that S____ told her that sexual abuse by appellant began when she was eight years old and that she had sexual intercourse with appellant over 100 times.S____ described three occasions in which appellant would have sexual intercourse with her and make B____ watch.He would also put his finger on B____'s vagina.Additionally, S____ described incidents in which appellant would force her to take baths with appellant and have sexual intercourse with her and put his finger in her vagina.Also, appellant asked S____ "to do his penis."S____ refused, and appellant offered to put chocolate or jelly on it and S____ still refused.Ms. McCune also testified that S____ told her that on July 2, 1985, appellant took off her clothes and put his finger in her vagina, then took off his clothes and put his penis in her vagina.At that time S____ also stated that appellant touched her breast and placed his mouth on her breast.Ms. McCune stated that at the interview, S____ did not appear to be angry towards appellant.

Ms. McCune and Detective Ostendorf also interviewed B____.Ms. McCune testified that B____ stated that appellant touched her since the age of eight.Ms. McCune testified that B____ stated that Mr. Fields insisted she take baths with him in which he would put his penis in her vagina and his tongue in her vagina and that she was forced to kiss him on the mouth.B____ also described how appellant would call her and S____ into his room and instruct each of them to take their clothes off and lie on top of each other and insert their fingers in each other's vagina.They refused, and then appellant told S____ to hold open B____'s vagina and then he would insert his finger in B____'s vagina.Ms. McCune also testified that B____ described the latest incident with appellant that occurred on June 24, 1985.On that day, appellant kept B____ home from summer school classes.Appellant took her to the front room where there was a pallet that had been used as a water bed.Appellant told B____ to take her clothes off, appellant was not wearing any clothes.Appellant put his finger in her vagina and then took her to her brother's room and laid her on the bed, got on top of her and put his penis in her vagina.Ms. McCune stated that B____ utilized slang terms, but believed she could not have described such incidents without actually experiencing them.

Both Ms. McCune and Detective Ostendorf testified that on July 9, 1985, they interviewed appellant.Prior to the interview, Detective Ostendorf gave appellant a copy of a warning and waiver form and read appellant his Miranda rights printed on the form.Appellant initialed each of the rights as they were read to him and signed the form.Ms. McCune and Detective Ostendorf also signed the form in appellant's presence.They asked appellant whether the aforementioned allegations described by S____ and B____ were true.Appellant admitted that all allegations were true with the exception of taking baths with B____.Appellant also told them he did not threaten the girls with whippings.

Appellant was tried on five counts: Count I, rape of B____ on June 24, 1985; Count II, sodomy of B____ on June 24, 1985; Count III, sodomy of B____ between July 9, 1984 and July 9, 1985; Count IV, rape of S____ on July 2, 1985; Count V, sodomy of S____ on July 2, 1985.At trial, S____, now 14 years old, testified that appellant only touched her vagina.She also testified that she saw her stepfather touch B____'s vagina with his finger once.S____ stated that she might have told Detective Ostendorf and Ms. McCune that appellant asked to take a bath with her, but that she did not like it and appellant never asked her again.B____, now 13 years old, also testified that appellant only touched her vagina, and that sometimes he took his clothes off when he did this.She further testified that she was about 11 years old when this started, and it would happen every couple of days.With respect to the occurrence on June 24, 1985, B____ stated that she told Detective Ostendorf and Ms. McCune that she took her clothes off in accordance with the appellant's instructions and that he put his finger in her vagina.She stated she cried and that appellant threatened to whip her if she did not stop crying.

Ms. McCune testified that time lapse and family pressures can cause children to change their stories from when it was initially given.Appellant's trial took place almost nine months after Mrs. Fields brought her daughters into the police station.

At trial, the court instructed on rape ¹ and sodomy.²Appellant requested two sets of instructions for first degree sexual abuse, § 566.100.1(1), RSMo 1978³ and second degree sexual abuse, § 566.110, RSMo 1978⁴ for each count.The trial court refused the instructions stating that the evidence indicated completed sodomy occurred and that sexual abuse offenses are not lesser included offenses.The jury convicted appellant on all five counts two rape and three sodomy counts.

II

Appellant raises the issue that the trial court erred in refusing appellant's instructions B through L ⁵ because "the evidence adduced at trial warranted the submission of lesser included offenses for which the appellant was being charged."Appellant asserts that sexual abuse may be a lesser included offense and that only some evidence is required to support the submission of a lesser included instruction.Appellant states that the testimony that he only touched their vaginas was sufficient evidence to submit an instruction on a lesser included offense.

III

Sexual abuse in the first and second degree, under the facts of this case, are not lesser included offenses of rape.The greater offense must include all the elements of the lesser offense, but if the lesser offense includes a necessary element not included in the greater offense, the lesser offense cannot be a lesser included offense.State v. Smith, 592 S.W.2d 165, 166(Mo. banc 1979), citingState v. Amsden, 299 S.W.2d 498, 504(Mo.1957).In Smith, the Court utilized the statutory elements test to determine if an offense was a lesser included offense.Smith, 592 S.W.2d at 166.In the statutory elements test, a comparison is made between the statutes at issue to determine if all the legal and factual elements of the lesser offense are included in the greater offense.Id.

This Court previously has stated that sexual abuse in the third degree ⁶ is not a lesser included offense of rape.State v. Harris, 620 S.W.2d 349(Mo. banc 1981).In Harris, this Court found that because sexual abuse required sexual contact and sexual contact included the mental element of "for the purpose of arousing or gratifying sexual desire of any person"§ 566.010.1(3), RSMo 1978, and rape required no mental state, sexual abuse in the third degree was not a lesser included offense of rape.Harris, 620 S.W.2d at 354-55.

The same element of sexual contact is also present in a first degree sexual abuse, § 566.100.1(1), RSMo 1978, and second degree sexual abuse, § 566.110.1, RSMo 1978.Thus, following Harris, these two offenses are not lesser included offenses of rape.Appellant is not entitled to instructions for these offenses.

IV

Sexual abuse in the first degree, § 566.100.1(1), RSMo 1978 is not a lesser included offense of sodomy.Appellant's instruction required that the jury find that appellant engaged in sexual contact without complainants' consent by the use of forcible compulsion.This element is not present in sodomy.Thus, § 566.100.1(1), RSMo 1978 includes a necessary element not included in the greater offense of sodomy, and therefore is not a lesser included offense.SeeState v. Smith, supra.

V

Appellant contends sexual abuse in the second degree, under the facts of this case is a lesser included offense of sodomy.Sodomy prohibits deviate sexual intercourse.Deviate sexual intercourse "means any sexual act involving the genitals of one person and the mouth, tongue, hand, or anus of another person."§ 566.010.1(2), RSMo 1978.Sodomy, among other things, can include acts that do not involve penal penetration.State v. Gibson, 623 S.W.2d 93, 99(Mo.App.1981).Sexual abuse in the second degree, though, is committed if the actor subjects the victim to "sexual contact"...