State v. Worthington

• Court: Missouri Court of Appeals
• Writing for the Court: Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM; SWOFFORD
• Citation: State v. Worthington, 582 S.W.2d 286 (Mo. App. 1979)
• Decision Date: 26 February 1979
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Frank WORTHINGTON, Appellant. 29808.

Page 286

582 S.W.2d 286

STATE of Missouri, Respondent, v. Frank WORTHINGTON, Appellant.

No. KCD 29808.

Missouri Court of Appeals, Western District.

Feb. 26, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 3, 1979.

Application to Transfer Denied July 17, 1979.

J. Martin Kerr, Tittle & Kerr, APC, Independence, for appellant.

John D. Ashcroft, Atty. Gen., Eric Martin, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SWOFFORD, Chief Judge.

The appellant (defendant) was charged by information with the felonies of Sodomy (Count I) under § 563.230 RSMo 1969, and with Molesting a Minor with Immoral Intent (Count II) under § 563.160 RSMo 1969. The defendant, represented by counsel, waived a jury and was tried before the court below, found guilty, sentenced to five (5) years on each Count, the sentences to run concurrently, and he appealed. The charges were based upon acts by the defendant involving a 13-year-old male, an employee of the defendant, who was the only witness for the State. The defendant did not testify and offered no evidence on his own behalf. The facts supporting the charges, necessary to the decision of this appeal, in summary, are as follows:

As noted, the sole witness for the State was F___ E___ H___, a male, thirteen years of age at the time of the alleged offenses and fourteen years of age at the time of the trial. The defendant was the operating manager of a motel on the east side of Kansas City. F___ E___ H___ attended school, and sometime in April, 1976, he and some other boys commenced doing odd jobs at the motel for the defendant, such as cleaning up around the swimming pool and parking lot, cleaning rooms and working in the restaurant. They were paid for this work.

F___ E___ H___ testified that sometime in April, 1976, he spent the night at the motel and he and the defendant occupied the same bed, and the defendant "just played with me". Several incidents were related by the witness following this occurrence where the defendant had the witness "jack him off" and asked the witness to "suck him", which he refused to do.

On August 19, 1976, F___ E___ H___ testified as to two incidents. One occurred in a regular room on a third floor of the motel where the witness stated he "jacked off" the defendant but again refused to "suck him" (this constitutes the basis for the charge in Count II) and later that day, at about 6:30 p. m. in the laundry room where the witness was folding sheets, at the defendant's request the witness "jacked him off" and "sucked him" (this constitutes the basis for the sodomy charge in Count I). Thereafter, F___ E___ H___ advised his brother and his parents of these facts and this proceeding ensued.

The defendant raises in his first three assignments of error the charge that § 563.230, the then sodomy statute, ¹ is facially unconstitutional and void, in that it violates the constitutional rights of privacy as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States, and Article I, Section 2, of the Missouri Constitution; that he did not waive his right to raise this constitutional issue on appeal; and, that he has standing to assert this constitutional issue. The State, on the other hand, meets this position by denial of the charge of unconstitutionality of the statute and asserts that even if such constitutional infirmity exists, the same was waived by the failure of the defendant to raise that issue at any stage of the proceedings before his brief in this Court. (The record discloses, in fact, that the defendant did not move to quash or otherwise attack the information; did not raise the constitutional issue either before, during or after trial in the court below; and did not raise it in his notice of appeal or otherwise in this Court until he filed his brief.) Further, the State strongly asserts that the defendant lacks standing to challenge the constitutionality of § 563.230 RSMo 1969.

Defendant's constitutional argument may be thus summarized: He asserts that § 563.230, the sodomy statute, is void and invalid On its face since it violates the right to privacy, as recognized to exist by the Supreme Court in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), between married persons in the privacy of their bedroom inherent in the marriage relationship, and as later extended to unmarried adults consenting, by that court in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

The threshold question for this Court's determination is whether the defendant, in the light of the facts shown by this record, has standing to present these constitutional questions. If he does enjoy such standing, since he asserts that the statute in question is Facially unconstitutional and void, this appeal would involve the Construction of the Constitution, as compared to the Application of constitutional principles, cannot be waived and this appeal must be transferred to the Supreme Court of Missouri. State of Missouri v. Mitchell, 563 S.W.2d 18 (Mo.banc 1978). On the other hand, if he lacks such necessary standing, the constitutional issues here raised, for the first time, cannot be considered on this appeal.

Further elaborating upon defendant's somewhat ingenious and convoluted argument as reflected in his briefs, he takes the position that § 563.230 invades the constitutional right to privacy of "every Missouri citizen" in that it proscribed "what a married couple does in the privacy of their bedroom" and private sexual activity of consenting adults. Such constitutional rights to privacy have, indeed, been recognized by the Supreme Court of the United States in Griswold v. Connecticut, 381 U.S 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), as to married persons, and in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), as to consenting adults, and other federal and state authorities. However, never, so far as the briefs here filed and independent research disclose, has this constitutionally protected right to privacy been extended to a factual situation such as disclosed by this record.

Running as a silver thread through all of the federal and state authorities relating to the constitutionally protected right to privacy is the principle that " * * * only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' * * * are included in this guarantee of personal privacy. * * * ". Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), at 93 S.Ct., l.c. 726(9). Such personal rights to privacy, it was emphasized in Roe, entail a "compelling state interest" such as the marriage relation, procreation, contraception, family relationships and child rearing and education, to name a few.

The defendant cites and relies upon a relatively small number of decisions from other states (some of which were later overruled in those states), none of which are persuasive here, which extend the right to privacy as to sex activities to consenting adults. One such authority extends to "consensual sodomitical practices performed in private by adult persons of the opposite sex". State v. Pilcher, 242 N.W.2d 348 (Sup.Iowa, 1976).

The elements giving rise to the right to privacy invoked by defendant are marriage, majority, privacy and consent. Marriage and adult status are completely lacking in this case. Privacy can be assumed from the record. Consent, even if such were present or could be found from this record, would be of no aid to defendant. F___ E___ H___, at the time was 13 years of age, and a person of such tender age is legally deemed incapable of consent to sodomy. State v. Rutledge, 267 S.W.2d 625, 626(3, 4) (Mo.1954); State v. Shumate, 516 S.W.2d 297, 301(10) (Mo.App.1974); State v. Wilson, 361 Mo. 78, 233 S.W.2d 686, 689(10) (1950); and State v. Villinger, 237 S.W.2d 132, 134(5) (Mo.1951). ²

Not by the most extreme stretch of logic or, indeed, of imagination, can the principles expressed in these authorities apply to the sordid facts before the Court in this case. Nor can it be said that any "fundamental" rights of the defendant "implicit in the concept of ordered liberty" are infringed upon by prosecution based upon such facts under Section 563.230 and the Missouri authorities defining its terms and application. The defendant's conduct charged and proved fits squarely within this pattern and stands far removed from any constitutionally protected right to privacy.

Under the facts as shown by this record, the defendant is forced to the position which he thus summarizes: "In the instant case defendant contends that Section 563.230, Missouri Revised Statutes, is unconstitutional on its face and Not as applied to defendant ". (Emphasis supplied). He thus takes up the cause of all married persons and consenting adults as to private sexual activities. He has no standing to do so since it has been firmly established that a person in his position "cannot challenge the constitutionality of a statute unless he shows that he himself is injured by it". Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953).

As stated in United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 46 L.Ed.2d 524 (1960), at 80 S.Ct., l.c. 522(3):

" * * * Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."

See also: State v. Saunders, 75 N.J. 200, 381 A.2d 333, 336-337 (1977).

Missouri is squarely in line with these authorities. In State v. Crawford, 478 S.W.2d 314 (Mo.1972), a case involving the same sodomy statute here under consideration, the court stated (l.c. 318-319(8)):

" * * * Whether activities of a nature different from those charged...