State v. Pilcher

• Decision Date: 19 May 1976
• Docket Number: No. 57756,57756
• Citation: State v. Pilcher, 242 N.W.2d 348 (Iowa 1976)
• Parties: STATE of Iowa, Appellee, v. Robert Eugene PILCHER, Appellant.
• Court: Iowa Supreme Court

Page 348

242 N.W.2d 348

STATE of Iowa, Appellee, v. Robert Eugene PILCHER, Appellant.

No. 57756.

Supreme Court of Iowa.

May 19, 1976.

Barnes, Schlegel & Walter, Ottumwa, for appellant.

Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., Samuel O. Erhardt, County Atty., for appellee.

Considered en banc.

MASON, Justice.

Defendant, Robert Eugene Pilcher, appeals from judgment imposed following his conviction by a jury of the crime of sodomy in violation of section 705.1, The Code. Although several issues are presented for review, defendant primarily challenges the constitutionality of this statute.

A Wapello County grand jury had indicted Robert Eugene Pilcher for the crime of sodomy. Before commencement of trial defendant filed application to withdraw his not guilty plea and for permission to file a demurrer. The demurrer, which was overruled, alleged the sodomy statute is unconstitutional in these respects: (1) it is an improper exercise of the police power; (2) it violates the due process and equal protection clauses; (3) it is unconstitutionally vague and overbroad; (4) it invades the right to privacy; and (5) section 705.2, The Code, implements cruel and unusual punishment.

The events leading to defendant's conviction occurred April 5, 1974. According to the testimony of barmaid Roma Charlyn Waterhouse, defendant forced her to commit fellatio upon him at a farm outside the city of Ottumwa. The events of April 5 commenced at the Tom Tom Tap in Ottumwa, where Mrs. Waterhouse met with defendant in the early afternoon. The two conversed in the tavern for about one hour, at which time they left together, ostensibly to look at defendant's new car.

They apparently drove her car to a public parking lot, whereupon they got into defendant's car and drove to a farm located in Wapello County owned by defendant's cousin, Max Marlin. The new car was supposed to be located at this farm.

Upon their arrival at the Marlin farm, defendant went to the house to get some keys, unlocked the padlocked door and suggested to Mrs. Waterhouse she come in the house. The couple proceeded into the kitchen where a five minute conversation ensued. As they started for the door, which apparently was in the front bedroom, another conversation commenced, whereupon Roma glanced at her watch and remembered she had no time for 'fun games.' At this point it was some time after 2:00 p.m.

Defendant then backed Roma into the bedroom. When she tried to walk around him he grabbed her arm, twisted it, then handcuffed her arms behind her and forced her down to a mattress on the floor. Defendant then removed her slacks and underwear, pushed up her sweater, and started to disrobe himslef. Roma stated on cross-examination she believed defendant wished to have what she described as 'normal' sexual intercourse, to which she would have agreed. In this connection, it was also adduced defendant and Roma had spent an hour on a previous occasion wherein they participated in 'normal' sex at the farm.

In any event, it was not long until Roma realized defendant wanted something other than 'normal' sex. She was objecting to this forced fellatio as she was 'not very fond of that.' After the first insertion, Roma informed defendant she had a piece of candy in her mouth. Because her hands were handcuffed behind her back, apparently, defendant removed the candy. This procedure was repeated upon Roma's informing defendant she also had false teeth. After defendant attained his climax, he removed the handcuffs and Roma cleaned up and got dressed.

Defendant then stated he would be in trouble with four other men as he was supposed to leave her at the farm for them. They then returned to Ottumwa and the parking lot where her car was located by about 3:00 p.m. A 15 minute conversation followed.

It was adduced during examination of Roma she neither struggled, kicked or tried to bite defendant during the events down on the farm. Furthermore, she related the facts to no one until talking with Mr. Wendell Plim the evening of April 5. She waited until the 'early morning hours' of the next day to tell her husband what had happened. He did not believe her as she divulged no names. In any event, Roma did state during trial she never consented to the act of fellatio.

Defendant's testimony contradicted most of the foregoing story. On the day of April 5, defendant drove his wife Diane to work at about noon. After purchasing cigarettes, he proceeded to the Hotel Ottumwa to discuss collecting unpaid bills for pest control. He then went to the Tom Tom Tap for a Pepsi Cola, remaining there approximately ten minutes. While defendant did say hello to Roma, there was no coversation about going to the farmhouse to see a new car.

Defendant then proceeded to the Jaycee circus office (of which project he was chairman or chairperson) where he remained from 1:00 p.m. through 4:00 p.m. He then picked up his wife, had dinner and returned her to work at around 5:00.

Mr. Robert Shenafelt was also at the circus office April 5. Defendant claimed he purchased handcuffs from Shenafelt that afternoon. In this regard, the State had earlier called Shenafelt as a witness. His testimony differed significantly from defendant's. While it may have been earlier, Shenafelt thought it was around 3:00 when defendant came into the office and stayed only a short period. As to the handcuffs, Shenafelt thought defendant purchased the handcuffs April 3--it seemed like it was in the middle of the week. Upon cross-examination, Shenafelt could state for sure only that the purchase took place some time during the week.

Finally, the defense called Mr. Max .marlin, owner of the farm, to the stand. Marlin testified he was at the farm from 12:00 through 4:00 p.m., April 5 and saw no one. This testimony was contradicted by state rebuttal witness Wayne Sheston, an agent of the Bureau of Criminal Investigation, who stated Marlin told him he had spent the entire day of April 5 in Ottumwa.

The jury returned a verdict of guilty. Sentencing was set for October 28, 1974, and a presentence investigation was ordered. Included in the information before Judge Pettit was a letter from Doctor Paul L. Loeffelholz, Clinical Director of the Iowa Security Medical Facility at Oakdale. Defendant had been sent to Oakdale pursuant to a chapter 225A order for determination whether defendant was a sexual psychopath. This letter stated defendant 'does not have a psychiatric condition which requires any hospitalization in a psychiatric setting.' Also contained in the letter, however, is the following statement:

'The patient claims that he cannot understand why the charges were finally placed, but since that time other women in the community have alleged that Mr. Pilcher perpetrated indiscreet sexual behavior in relation to them. The patient denies such activity. This man also understands that he is considered as a suspect in an unsolved murder which happened in Wapello County. Mr. Pilcher says that he had nothing to do with that event but at the same time, he says he can understand why he is considered as a possible suspect.'

The presentence report itself mentions the above sexual behavior and Dr. Loeffelholz' conclusion defendant does not suffer from a psychiatric condition requiring hospitalization. Judge Pettit considered this information in denying a bench probation even though the section 225A.8 proceeding had been dismissed due to the doctor's conclusion.

At the close of the State's evidence defendant had filed a motion to dismiss based upon the reasons urged in the demurrer. The trial court overruled the motion. This was followed by a motion for a directed verdict, alleging failure of proof (1) of the elements constituting the crime of sodomy, (2) that defendant had any type of carnal copulation with the complaining witness, (3) that any carnal copulation occurred in any opening of the body other than sexual parts--the definition of sexual parts including the mouth, and (4) that the offense occurred in Wapello County. Defendant further urged the evidence showed Roma Waterhouse was a willing participant and therefore an accomplice. Thus, there was a failure of proof in that no corroborating evidence was adduced the act did actually occur or that defendant was the perpetrator. Finally, it was asserted if the case were to go to the jury, it would allow speculation on the part of the jury constituting a denial of defendant's rights to a fair trial and due process of law. Both motions were overruled.

At the close of all evidence, defendant renewed his motions for dismissal and for a directed verdict as well as the above grounds therefor. To the motion for a directed verdict was added the ground the State had failed to establish each element of the crime beyond a reasonable doubt. These motions too were overruled.

Finally, before argument to the jury, defendant excepted to instructions 6 and 7. Instruction 6 defined sodomy, and the objection raised the demurrer's grounds as well as the fact 'sexual parts' was not defined. Instruction 7, paragraph two, was objected to based upon the fact the mouth is a sexual part. There is no indication of record of further objections to the instructions at any time.

After rendition of judgment and sentence, defendant appealed to this court.

I. Defendant contends the trial court erred in overruling his demurrer and motion to dismiss directed at the constitutionality of sections 705.1 and 705.2. These statutes provide in pertinent part:

'705.1 Definition. Whoever shall have carnal copulation in any opening of the body except sexual parts, with another human being, * * *, shall be deemed guilty of sodomy.

'705.2 Punishment. Any person who shall commit sodomy, shall be imprisoned in the penitentiary not more that ten years.'

Defendant's attack upon constitutionality is predicated on the following grounds: (1) it is an invalid exercise of the State's police power in that it...