State v. Keil, 56616

• Decision Date: 07 August 1990
• Docket Number: No. 56616,56616
• Citation: 794 S.W.2d 289
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Peter A. KEIL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 289

794 S.W.2d 289

STATE of Missouri, Plaintiff-Respondent, v. Peter A. KEIL, Defendant-Appellant.

No. 56616.

Missouri Court of Appeals,

Eastern District

Division Four.

Aug. 7, 1990.

John M. Putzel, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., M. Melissa Manda, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

CARL R. GAERTNER, Presiding Judge.

Appellant Peter A. Keil appeals his jury conviction of four counts of sodomy and his sentences of five, ten, ten, and five years respectively, to be served concurrently. We affirm his convictions on counts II, III, and IV, and reverse his conviction on Count I.

The victim, a three-year-old boy named C.R., resided with his parents and two siblings in Michigan. From December 23-30, 1987, the family was staying at the St. Louis County home of C.R.'s grandparents. Appellant, C.R.'s uncle, was also at the residence periodically.

C.R.'s mother testified that upon their return home to Michigan, C.R. was agitated, disruptive, and uncooperative. On January 4, 1988, C.R.'s mother was cleaning him and noticed he had "six or seven" tears in his rectum. She asked C.R. what happened to his "bottom" and he replied, "Peter put his finger in my poop hole." Appellant is the only "Peter" C.R. knows. Later that same day C.R. told his father the same thing. C.R.'s father testified that C.R. began having nightmares, and about March C.R. told his father that Peter put his penis in his "butt" and put his penis in C.R.'s mouth. In the summer of 1988 C.R. told his father after one of his nightmares that Peter "peed white stuff" all over his face.

Detective Sergeant Ken Kleinheksel of the Juvenile Crimes Bureau of the Kent County, Michigan, Sheriff's Department was contacted by C.R.'s parents. On January 8, 1988, after getting a brief background statement, Sergeant Kleinheksel interviewed C.R. C.R. likewise informed Sergeant Kleinheksel that Peter put his finger in C.R.'s "poop hole." C.R. then demonstrated, with anatomically correct dolls, that appellant put his penis in C.R.'s rectum. C.R. then stated, and demonstrated with the dolls, that appellant had C.R. put his mouth on appellant's penis, and that "pee" came out of it. Sergeant Kleinheksel asked what color the pee was. C.R. replied, "It was white." C.R. also said that he had to touch appellant's penis with his fingers.

On January 22, 1988, C.R. was examined by Dr. Kathryn Bowen at the Sexual Abuse Management Clinic at Cardinal Glennon Children's Hospital in St. Louis, Missouri. Dr. Bowen testified there were positive findings of redness around the rectum and unusual ridges. These findings were consistent with sexual abuse, but Dr. Bowen could not conclusively rule out other causes.

Andrea Baier-Petiet, a clinical psychologist, testified she began therapy sessions with C.R. in April, 1988. Ms. Petiet stated C.R. said nothing of the incidents until December 19, 1988. On that day, during a therapy session, C.R. stated he was angry with "Peter." Ms. Petiet asked what happened, and C.R. stated Peter told him to take his pajamas off. He then undressed two anatomically correct dolls and proceeded to describe and demonstrate that appellant put his penis in C.R.'s "butt hole" and mouth.

C.R. was five years old when appellant's trial took place. He testified that appellant touched him and circled a mouth and an anus on an anatomically correct drawing. He testified appellant touched him in those places with his finger and his penis. C.R. said he saw "pee" come out of appellant's penis. C.R. was then handed two anatomically correct dolls and was asked to show what happened. C.R. put one doll's penis on the other's rectum, then took one doll's fingers and placed them on the other doll's rectum, and finally placed one doll's mouth on the other doll's penis.

Appellant raises four points on appeal. For the sake of clarity we begin with his second, which alleges trial court error in denying his motion for judgment of acquittal as to Count I because the evidence, viewed in the light most favorable to the state, showed an act involving the hand of one person and the rectum of another, which is not an act of "deviate sexual intercourse" as defined in § 566.010.1(2) RSMo.1986.

Section 566.060.3 RSMo.1986 states:

A person commits the crime of sodomy if he has deviate sexual intercourse with another person to whom he is not married who is less than fourteen years old.

Section 566.010 states:

1. As used in this chapter:

(2) "Deviate sexual intercourse" means any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person[.]

The act specified in Count I alleged to have constituted deviate sexual intercourse was appellant's putting his finger in C.R.'s rectum. This act does not involve the genitals of either person, and therefore does not fall within the definition of deviate sexual intercourse. The evidence on Count I was insufficient to convict appellant of sodomy. ¹ Appellant's conviction on Count I is reversed.

Appellant next contends the trial court erred in submitting to the jury the verdict directing instructions because they did not follow the applicable pattern instruction for sodomy. He asserts he was prejudiced thereby because the instructions did not require the jury to find that the act alleged constituted deviate sexual intercourse and that the act was done with the intent to arouse or gratify sexual desire.

Appellant's argument is predicated upon the fact that the verdict directing instructions on each of the four counts of sodomy did not include the following language:

As used in this instruction, the term "deviate sexual intercourse" means any act involving the genitals of one person and the mouth, tongue, hand or anus of another person done for the purpose of arousing or gratifying the sexual desire of any person.

Appellant contends that the omission of this paragraph from the instructions constitutes a deviation from MAI-CR3d 320.08.2 and the giving of the instruction in this form constitutes an erroneous violation of Rule 28.02. Although it is easy to perceive the basis of appellant's contention, it is nevertheless without merit.

The published form of the current version of MAI-CR3d 320.08.2, which includes the definition of deviate sexual intercourse omitted from the instructions given in this case, contains in the upper left-hand corner the date 1-1-89. However, this revision of the instruction was approved by the Supreme Court by order dated March 9, 1989. This order provides the revised instruction "must be used and followed on and after July 1, 1989...." The order further provides for the revised instruction to be published in the Journal of the Missouri Bar and the Southwestern Reporter.

The trial of this case began on March 14, 1989 and concluded on March 16, 1989. Accordingly, the prior version of MAI-CR3d 320.08.2, which did not include the definitional paragraph, was properly utilized in this case. We cannot charge the trial court with error for failing to give a revised instruction which had not been publicly disseminated at the time of the trial.

Moreover, even if the revised instruction defining deviate sexual intercourse had been required, we would not find the omission of the definition from the instructions in this case to be prejudicially erroneous. Rule 28.02(f) provides for a judicial determination of the prejudicial effect of an erroneous instruction. In making this determination, we must consider the instruction in the light of the facts in the case. State v. Ward, 745 S.W.2d 666, 670 (Mo.banc 1988).

Appellant does not contend the instructions on Count II, III and IV do not properly require the jury to find the acts constituting the offense of sodomy. Rather he argues that because of his testimony that he may have "accidentally" touched C.R., he was prejudiced because the jury was not required to find the essential element of intent to arouse or gratify sexual desire. Considering the evidence as a whole we are unable to perceive of any possibility that the jury could have convicted appellant because of accidental or innocent touching, the concern which gave rise to the revision of the patterned instruction....