State v. Moppin, 62425
| Decision Date | 08 December 1989 |
| Docket Number | No. 62425,62425 |
| Citation | 245 Kan. 639,783 P.2d 878 |
| Parties | STATE of Kansas, Appellee, v. Michael MOPPIN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Oral-genital stimulation between the tongue of a male and the genital area of a female, commonly known as cunnilingus, is not included in the definition of "sodomy" found at K.S.A. 21-3501(2) and, therefore, a conviction for aggravated criminal sodomy in violation of K.S.A. 21-3506, based upon such acts, cannot stand.
2. Aggravated sexual battery, K.S.A. 21-3518, is not a lesser included offense of indecent liberties with a child, K.S.A. 21-3503, and the trial court did not err in failing to so instruct. State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988).
Rick Kittel, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.
Mary Murguia, Asst. Dist. Atty., argued the cause, and Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.
This appeal arises out of the convictions of Michael Moppin of one count of aggravated criminal sodomy (K.S.A. 21-3506) and one count of indecent liberties with a child (K.S.A. 21-3503). He was sentenced to a term of five to twenty years on the aggravated criminal sodomy conviction and three to five years on the indecent liberties conviction, and then placed on probation. Moppin raises four issues on appeal: (1) Whether there was sufficient evidence to sustain a conviction of aggravated criminal sodomy; (2) whether the trial court erred in failing to instruct on the offenses of aggravated sexual battery and attempted aggravated criminal sodomy as lesser included offenses of aggravated criminal sodomy (3) whether the trial court erred in its instruction on indecent liberties with a child; and (4) whether the defendant should have been charged with indecent liberties with a child instead of aggravated criminal sodomy.
Because an understanding of the facts is necessary for the determination of the issues raised, they will be set forth in some detail.
At the time of his arrest, defendant Moppin was a Kansas City, Kansas, police officer. His wife Mindy was a paramedic. They often worked divergent schedules. As a result, the two children in the family were often placed in the care of defendant's sister Amy and/or his mother Loretta. The victim of the two offenses was defendant's natural daughter, D.M.
On March 12, 1987, Amy, Loretta, and D.M. were riding in a car in Kansas City. Amy thought she heard D.M. say, "Daddy gave me a licking." When the trio arrived home, both Amy and Loretta questioned D.M. about her statement. D.M. responded by saying that her father had licked her. When asked where her father had licked her, D.M. indicated by pointing at, in Amy's words, "her vagina." Upon hearing this, Amy told an acquaintance, Kathy McIntosh, an SRS social worker, of D.M.'s statements. McIntosh in turn reported the allegations. As a result of her report, on March 13, 1987, Detective Smith of the Kansas City Kansas Police Department and Kathy Calvert, an SRS child protection worker, interviewed D.M. at Loretta's house. D.M. was five years old at this time.
During the course of the interview, D.M. was shown a picture of a nude little girl. She marked both the genital area and the buttocks of the little girl in the picture where her father had licked her. Using anatomically correct dolls, D.M. pulled down the pants of the male and placed it on top of the female doll with the genitals touching. This was done in response to a request from Calvert to show what D.M.'s father had done. Because defendant and his wife arrived during the course of the interview at Loretta's house and were very upset over the situation, Detective Smith removed D.M. to police headquarters for a videotaped interview.
Smith testified that he began the interview by having D.M. describe different parts of the body so that he knew the words she used for them. When he first asked if anyone had touched her, D.M. replied, "No." When he asked D.M. what she and Calvert had been talking about, she responded, "He licked me." With the use of anatomically correct dolls, she placed the head of the adult male doll on the pubic area of the young female doll. She also told Smith that her father had laid on top of her and illustrated this with the dolls. She said that her father had put his hands on his penis while doing this. At trial D.M. identified the defendant in the courtroom and testified that he had both licked her and touched her with his hands between her legs.
Between the time of the initial report and trial, a period of almost one year, D.M. spent time at the Kansas Institute, a psychiatric hospital, and in foster care placement. She also attended twenty-eight sessions of psychotherapy. At trial, three staffers from the Kansas Institute, the foster mother, and the psychotherapist all testified that D.M. repeatedly and spontaneously told them that her father had licked her between her legs.
Other facts will be set forth as may be necessary in the discussion of the issues.
Defendant first complains that there was insufficient evidence to sustain a conviction of aggravated criminal sodomy. His attack is two-pronged: (1) The State failed to prove penetration, and (2) the State failed to prove oral copulation.
"In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Walker, 244 Kan. 275, Syl. p 4, 768 P.2d 290 (1989).
K.S.A. 21-3506 provides in part: "Aggravated criminal sodomy is: (a) Sodomy with a child who is not married to the offender and who is under 16 years of age." Sodomy is defined at K.S.A. 21-3501(2):
The trial court instructed the jury as follows:
1) That the defendant had oral sexual relations with [D.M.], who was not his wife;
2) That there was actual penetration;
3) That the victim was a child under the age of 16 years; and
4) That this act occurred between July 31, 1984 and March 13, 1987 in Wyandotte County, Kansas.
"Any penetration, however slight, is sufficient." (Emphasis added.)
Defendant argues that the record is void as to any evidence of penetration. The State counters by saying that D.M. testified that her father licked her vagina. Penetration is inherent, so claims the State, based upon this testimony. The State further argues that the members of the jury should be allowed to use their common sense and experience in determining whether penetration occurred because it is difficult to explain to a child-witness the concept of penetration and difficult for a child-witness to testify to an act of penetration. The State implies that a "common sense" exception should be created in child sodomy cases to relieve the State of the difficult burden of proving penetration. If such exception is to be created, it is for the legislature to do so.
A review of the record indicates that nobody ever tried to explain the element of penetration to D.M., nor did anyone ever ask her if penetration occurred. The only evidence which could lend credence to the fact that penetration had occurred was D.M.'s testimony that defendant had licked her "vagina." The effect of this testimony was seriously reduced by her further indication that "vagina" was not her word. The record, in fact, demonstrates that, throughout the investigation, others interviewed in the investigation had suggested to D.M. various names for her genital area. Her only original comments were that defendant had licked her "down there" and "between her legs." She further demonstrated the area of licking by pointing to her genital area.
With regard to the question of whether the State proved oral copulation, defendant refers to State v. Switzer, 244 Kan. 449, Syl. p 2, 769 P.2d 645 (1989), in which the court stated, Defendant contends that because there is no evidence that he inserted his sex organ into a mouth or an anus, his conviction for aggravated criminal sodomy cannot stand. He refers to the definitions of "sexual intercourse" and "sodomy" found in K.S.A. 21-3501 and suggests that such definitions exclude the possibility that...
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...that there was insufficient evidence to sustain his conviction for aggravated criminal sodomy based on the court's holding in State v. Moppin, 245 Kan. 639, Syl. ¶ 1, 783 P.2d 878 (1989), that cunnilingus is not `sodomy' under K.S.A. 21-3501(2). Neer had not raised the issue at trial or on ......
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