State v. Holmes, 43624

• Decision Date: 03 May 1983
• Docket Number: No. 43624,43624
• Citation: 654 S.W.2d 133
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Wade Charles HOLMES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 133

654 S.W.2d 133

STATE of Missouri, Plaintiff-Respondent, v. Wade Charles HOLMES, Defendant-Appellant.

No. 43624.

Missouri Court of Appeals,

Eastern District,

Division One.

May 3, 1983.

Motion for Rehearing and/or Transfer to

Denied July 6, 1983.

Application to Transfer Denied

Aug. 16, 1983.

John Putzel, Asst. Public Defender, Joseph W. Downey, Public Defender, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

STEPHAN, Judge.

Defendant appeals from jury conviction for burglary in the first degree, § 569.160, RSMo 1978, and sodomy § 566.060, RSMo 1978. ¹ Defendant was sentenced as a persistent offender to fifteen years on each count, the sentences to be served consecutively. We affirm.

On the morning of November 23, 1979, at about 9:25 a.m., Ann T________, age 18, was awakened by an intruder grabbing her head as she slept in her bed. She had been alone in the house, and the man (later identified by her as defendant) forced her into her sister's bedroom. The defendant instructed Ann to lie across the bed on her stomach. The defendant lifted Ann's nightgown, tore off her panties, rubbed his penis against her anus, vagina, and legs for about five minutes and ejaculated. During this act, Ann removed a ring from the assailant's hand, apparently without his knowledge. With the aid of a flashlight, defendant thereafter searched through drawers in the bedroom, which provided Ann an opportunity to observe her assailant's clothing: orange trousers, a dark suede jacket, and a black cap. She also was able to see his profile. The defendant struck Ann in the head when he saw her watching him, and then he ran from the home, limping as he left. St. Louis Police Officer George Jonas, acting on a description provided by the victim, apprehended defendant a few blocks from the victim's home. Defendant did not testify and presented no other witnesses.

In his initial point on appeal, defendant claims that the trial court erred in overruling his motions for acquittal at the close of the state's case and after the presentation of all the evidence, as he argues that the state did not prove the common law requirement of penetration as an element of sodomy. The point is without merit. Section 566.060, supra, provides in part, "A person commits sodomy if: (1) He has deviate sexual intercourse with another person to whom he is not married, without that person's consent by the use of forcible compulsion; ..." As used in Chapter 566, the term, " '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). From a reading of these statutes, it is clear that, at least since January 1, 1979, the effective date of Missouri's current criminal code, penetration is not an element of sodomy. The evidence warranted a jury finding that defendant engaged in a sexual act with the victim involving his penis and her anus which, along with the other elements relating to lack of marital relationship, lack of consent and forcible compulsion, constituted "deviate sexual intercourse" and, thus, sodomy.

Defendant argues, however, that the evidence of the corporeal contact between penis and anus, in this case, also satisfies the definition of "sexual contact" contained in § 566.010. For purposes of Chapter 566, that term is defined in § 566.010 as "any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person." The definition of "sexual contact" in § 566.010 was obviously placed there by the General Assembly to give meaning to that term as used in §§ 566.100, 566.110, 566.120, which proscribe the crimes of first, second, and third degree sexual abuse, respectively. From the similarity between the definition of "deviate sexual intercourse" and "sexual contact," defendant argues that, unless penetration is a necessary element of sodomy, then the crime of sodomy has merged with the crime of sexual abuse in its various degrees.

While we acknowledge defendant's argument as eminently resourceful, we do not accept it. All of the aforementioned sections were enacted by the General Assembly in 1977, effective January 1, 1979, as part of a comprehensive revision of the criminal code of Missouri. As such, they are in pari materia, are presumed to be compatible, and are accorded harmonious interpretation, if at all possible. See State ex rel. Carlton v. Haynes, 552 S.W.2d 710, 715 (Mo. banc 1977). The principle of construing statutes harmoniously when they relate to the same subject matter is all the more compelling when they are enacted at the same session of the General Assembly. See Hull v. Baumann, 345 Mo. 159, 131 S.W.2d 721, 725 (1939); Farmer's Bank of Antonia v. Kostman, 577 S.W.2d 915, 923 (Mo.App.1979); Dillen v. Remley, 327 S.W.2d 931, 935 (Mo.App.1959); Combs v. Cook, 238 Ind. 392, 151 N.E.2d 144, 147 (1958). Guided by this view, we cannot accept defendant's argument which would inexorably lead to the conclusion that, in defining the crime of sodomy, the General Assembly abolished it as a distinct crime. ²

An argument similar to the one made here was rejected in State v. Harris, 620 S.W.2d 349, 354-355 (Mo. banc 1981) in connection with a discussion as to whether, under the new code, sexual abuse in the third degree is a lesser included offense of rape. Holding that it is not, our Supreme Court said that, because of the definition of "sexual contact" quoted above, "sexual abuse in the third degree requires a mental state ... not necessary to conviction of rape. In rape, purpose and motive are irrelevant." Id., 355. The Western District of this Court in State v. Gibson, 623 S.W.2d 93, 99-100 (Mo.App.1981), stated that the Harris rationale does not readily apply to non-penetration sodomy cases, however, for the reason that the deviate sexual intercourse inherent in sodomy requires "a sexual act." This term, according to Gibson, "must imply an intent to arouse or gratify sexual desire or [else] non-criminal behavior will be within the definition ..." of deviate sexual intercourse. ³ Id., 100. Assuming that "intent to arouse or gratify sexual desire" is a necessary element of the crime of sodomy without penetration, such a finding could readily be made by the jury from the facts of this case. The victim's account of defendant's actions left no room for a conclusion that they constituted an innocent or accidental touching. Cf. State v. Purk, 625 S.W.2d 888, 890 (Mo.App.1981). Thus, to the extent that the crime of sodomy committed without penetration parallels the definition of sexual abuse in the first degree, the acts that warrant conviction of one might well support a conviction of the other. It does not follow, however, that the crimes have merged into one, for "the legislature may provide that the same facts may constitute separate offenses with separate and different penalties. If this is done, it rests in the discretion of the prosecution as to which charge is to be brought." Gibson, supra, 101.

What has been said of the foregoing point disposes in large measure of defendant's second point. In this point, defendant claims that the trial court erred in not "instructing down" so as to give the jury an opportunity to consider acquittal of sodomy and conviction of sexual abuse in either the first or third degree. As indicated above, the elements of sodomy without penetration and first degree sexual abuse in the context of this case are the same and, "thus, one offense is not a lesser included offense of the other." State v. Williams, 628 S.W.2d 947, 949 (Mo.App.1982). With respect to the failure of the trial court to instruct on sexual abuse in the third degree, defendant notes that the difference in the two degrees is that the latter does not require a jury finding of forcible compulsion as an element of the offense. In support of his...