State v. Phillips
| Decision Date | 15 December 1978 |
| Docket Number | No. 61975,61975 |
| Citation | 365 So.2d 1304 |
| Parties | STATE of Louisiana v. Larry Joe PHILLIPS. |
| Court | Louisiana Supreme Court |
John Wilson Reed, New Orleans, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
The defendant Phillips was convicted of two counts of aggravated crime against nature, La.R.S. 14:89.1(5) (1962), and sentenced to fifteen years imprisonment at hard labor (the maximum) on each count, with the sentences to be consecutive. Five assignments of error are argued by his appointed counsel. The accused also files Pro se pleadings suggesting certain additional contentions.
In our view, the principal contentions of error are: I. Whether La.R.S. 14:89 (1975) and 14:89.1 (1962), prohibiting crime against nature and Aggravated crime against nature respectively, are unconstitutionally vague; II. Whether penetration is required for proof of anal-genital and of oral-genital sexual activity proscribed by the statutes; and III. Whether a criminal defendant's attorney sitting beside him in open court may waive his right to a jury trial.
The bill of information charges the defendant Phillips with two counts of the crime charged, in both instances alleging that the accused had "unnatural carnal copulation" during June, 1976 with a named individual male, thirteen years of age, with the defendant being at least three years older than the named victim. Count 1 alleges that the defendant "did place his penis in the area of the anus of the said" juvenile. Count 2 alleges that the defendant "did place his mouth upon the penis of the said" juvenile.
The proof corresponds to the charges. On Count 1, the juvenile testified that the accused, after placing a lubricant between the juvenile's legs, placed his penis between the youth's legs for about two minutes. On Count 2, the juvenile testified that the accused sucked his penis for about five minutes. The incidents occurred consecutively within the short span of minutes.
The accused did not testify. However, his ward (a 17-year-old boy) was present on the occasion of the accused's visit to New Orleans and on the beach excursion preceding the alleged incidents. This witness denied that any sexual activity whatsoever took place.
The gravamen of the offense charged is that the accused committed a crime against nature, La.R.S. 14:89 (1975) ("unnatural carnal copulation", involving "the use of the genital organ of one of the offenders") with the juvenile, which constituted Aggravated crime against nature, La.R.S. 14:89.1(5) (1962), because the juvenile was under the age of 17, while the accused was at least three years older. The statutes are set forth in full in Appendix 1 below.
By a motion in arrest of judgment, La.C.Cr.P. art. 859(2), the defendant questions the constitutionality of the statute under which convicted.
By his Pro se pleadings, the accused contends that the statutory definition of crime against nature, La.R.S. 14:89, is unconstitutionally vague, as not affording a potential offender adequate notice of the conduct prohibited.
A statute defining a crime against nature, even though the statute itself does not specify the details of the crime, will not be held unconstitutionally vague if it has been sufficiently defined by authoritative judicial interpretation that a potential offender has notice of what is criminally proscribed. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).
Louisiana's statute meets that test. The statutory terms defining the crime as "unnatural carnal copulation" involving the "use of the genital organ of one of the offenders" have acquired historically and jurisprudentially a definite meaning. As between human beings, it refers only to two specified sexual practices: sodomy (anal-genital intercourse of a specified nature, see below) and oral-genital activity (whereby the mouth of one of the participants is joined with the sexual organ of the other participant).
See: State v. Lindsey, 310 So.2d 89, concurring opinion 310 So.2d 92 1 (La.1975); State v. Young, 249 La. 1053, 193 So.2d 243 (1966) 2; State v. Bonanno, 245 La. 1117, 163 So.2d 72 (1964); State v. Murry, 136 La. 253, 66 So. 963 (1914) 3; State v. Long, 133 La. 580, 63 So. 180 (1913); State v. Vicknair, 52 La.Ann. 1921, 28 So. 273 (1900); State v. Williams, 34 La.Ann. 87 (1882).
For similar reasons, the crime of aggravated crime against nature, La.R.S. 14:89.1, has withstood similar attacks of unconstitutional vagueness. State v. McCoy, 337 So.2d 192 (La.1976); State v. Bluain, 315 So.2d 749 (La.1975).
By Assignment 7, the defendant further contends that the provision of R.S. 14:89.1(5) making a crime against nature aggravated, "where the victim is under the age of seventeen years and the offender is at least three years older than the victim" is unconstitutionally vague and indefinite. He argues that the statute provides no way of identifying which of the two parties to the consensual act is to be regarded as the victim and which is to be regarded as the offender.
The contention is refuted by the precise terms of the statute, by which the victim is the participant who is under the age of seventeen years. The rationale behind the statute is that a child of that age is incapable of giving a mature consent to actions of this nature performed with an older person, see Perkins on Criminal Law 391 (2d ed. 1969), and is thus in need of special protection by criminal sanction.
We find no vagueness in the statute. Nor do we find the legislative classification to be irrational in the light of the social evil addressed, despite counsel's forceful suggestion of possible bizarre applications (e. g., a 16-year-old prostitute being a "victim" of a 19-year-old friend or customer).
By motions for directed verdict, and a new trial (alleging that an essential element of the crime was not proved), and in arrest of judgment (alleging that the bill of information does not charge a crime, since an essential averment is omitted, La.C.Cr.P. art. 859(1) 4 ), the defendant contends that the prosecution falls because it did not charge or prove that there was actual penetration of the anus (Count 1) (Assignments 3, 5). By motion in arrest of judgment, he further contends that the Count 2 of the bill of information is defective because it does not allege penetration of the mouth (Assignment 5).
As earlier stated, the anal-genital crime against nature between human beings proscribed by our statute has jurisprudentially been held to be the conduct proscribed by the common-law crime of sodomy. State v. Murry, 136 La. 253, 66 So. 963 (1914); State v. Long, 133 La. 580, 63 So. 180 (1913); State v. Williams, 34 La.Ann. 87 (1882). See State v. Lindsey, 310 So.2d 89, concurring opinion 310 So.2d 92 (La.1975). Only because of this definite meaning of the statutory language has the enactment been saved from unconstitutional vagueness.
The crime of sodomy, or anal-genital intercourse, was clearly defined at common law, and penetration of the anus by the penis was an essential element. Perkins on Criminal Law 389-90 (2d ed. 1969); Clark & Marshall, A Treatise on Crimes, Section 11.07 (7th ed., 1967). See also discussion and citation of authority in State v. Morrison, 25 N.J.Super. 534, 96 A.2d 723 (1953).
The charge by Count 1 was the defendant "did place his penis in the area of the anus" of the victim. The only evidence on this count at the trial was that the defendant placed his penis between the victim's legs.
There was thus no evidence of the essential element of penetration. The defendant's motion for a directed verdict and for a new trial on Count 1, because of the total lack of evidence as to this essential element, is therefore well founded.
In arguing that penetration is not required, the state relies upon the 1975 amendment's exclusion from the crime against nature of anal sexual intercourse under circumstances constituting the rape crimes, La.R.S. 14:41, 41.1, 42, and 43 (). Since penetration Is required for the rape crimes, the state contends that it is Not required in order for anal-genital conduct to constitute a crime against nature.
The rape crimes, however, concern sexual intercourse, whether anal or vaginal, committed Without the consent of the other party. In the case of a juvenile, it is "deemed to be without the consent of the victim . . . (w)here the victim is under the age of twelve years." La.R.S. 14:42(3) (1975).
Under the statutory scheme, where the anal sexual activity is committed With the consent of the other participant, or with the consent of a juvenile over the age of twelve and under seventeen years, the criminal conduct violates the crime-against-nature statutes rather than the rape statutes. We therefore find no merit to the state's contention that, because of the exclusion of rape offenses from the crime against nature statute, penetration is no longer required for a crime against nature committed by anal-genital activity.
We should note that the circumstance that the present type of anal-genital conduct with a juvenile is not technically punishable as a crime against nature does not mean that it is exempt from criminal responsibility. See, e. g., the statute defining indecent behavior with juveniles, with punishment up to imprisonment at hard labor for five years imposed for its violation. La.R.S. 14:81 (1977). ...
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Thomas v. State
...be shown is some contact between the mouth and the male organ. Carter v. State, 122 Ga.App. 21, 176 S.E.2d 238 (1970); State v. Phillips, 365 So.2d 1304 (La.1978), cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979); McDonald v. State, 513 S.W.2d 44 (Tex.Crim.App.1974). Therefo......
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State v. Lancaster
...be shown is some contact between the mouth and the male organ. Carter v. State, 122 Ga.App. 21, 176 S.E.2d 238 (1970); State v. Phillips, 365 So.2d 1304 (La.1978), cert. denied, 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979); McDonald v. State, 513 S.W.2d 44 (Tex.Crim.App.1974). Therefo......
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State v. Smith
...vague, and overbroad. In our discussions of vagueness, we have held, relying on the summary of jurisprudence found in State v. Phillips, 365 So.2d 1304 (La.1978), that: The statutory terms defining the crime as "unnatural carnal copulation" involving the "use of the genital organ of one of ......
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State v. Kahey
...several times a rule which would require the trial judge to personally inform the defendant of his right to a jury trial. State v. Phillips, 365 So.2d 1304 (La.1978); State v. Muller, supra. And we have even approved a waiver made by a defense attorney in a defendant's presence in open cour......
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Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.
...v. Mills, 505 So. 2d 933 (La. Ct. App. 1987) (adult male entered adult female's trailer and raped and sodomized her). State v. Phillips, 365 So. 2d 1304 (La. 1978) (adult male engaged in anal and oral intercourse with 13 year old State v. Picchini, 463 So. 2d 714 (La. Ct. App. 1985), writ d......