Virgin v. State, F-87-790
| Decision Date | 11 May 1990 |
| Docket Number | No. F-87-790,F-87-790 |
| Citation | 792 P.2d 1186 |
| Parties | Herbert A. VIRGIN, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
HERBERT A. VIRGIN, appellant, was convicted in the District Court of Oklahoma County, Case No. CRF-87-201, of Forcible Oral Sodomy (Count I), Lewd or Indecent Acts with a Child Under the Age of Sixteen (Count II), and Forcible Anal Sodomy (Count III), each After Former Conviction of Two or More Felonies. He was sentenced to imprisonment for one hundred fifty (150) years on each count, with Counts I and II ordered to be served concurrently and Count III ordered to be served consecutively. From these judgments and sentences, appellant appeals to this Court. Appellant's conviction for Forcible Anal Sodomy (Count III) is REVERSED and REMANDED with instructions to DISMISS. The judgments and sentences for conviction of Forcible Oral Sodomy (Count I) and Lewd or Indecent Acts with a Child Under the Age of Sixteen (Count II) are hereby AFFIRMED.
Lee Ann Jones Peters, Asst. Appellate Public Defender, Oklahoma City, for appellant.
Robert S. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.
Herbert A. Virgin, appellant, was tried by jury for the crimes of Forcible Oral Sodomy (Count I), Forcible Anal Sodomy (Count III), both in violation of 21 O.S.1981, § 886 and 21 O.S.Supp.1982, § 888, and Lewd or Indecent Acts with a Child Under the Age of Sixteen (Count II), in violation of 21 O.S.Supp.1985, § 1123, each After Former Conviction of Two or More Felonies, in the District Court of Oklahoma County, Case No. CRF-87-201. The jury returned a verdict of guilty on each count and set punishment at one hundred fifty (150) years imprisonment per count. The trial court sentenced appellant accordingly, ordering that Counts I and II be served concurrently and Count III to be served consecutively. From these judgments and sentences, appellant has perfected this appeal.
In October of 1987, Marilyn W. and her two daughters, C.W., age 8, and S.E., moved into her cousin Meda W.'s two-bedroom house. Meda and appellant, her fiance, occupied one bedroom in the home while Marilyn and the two girls slept in the other bedroom. Marilyn testified that on several occasions during the ensuing two months, she was awakened during the night to find appellant sitting on C.W.'s bed. When confronted, appellant explained that he had come into the room to cover the girls so they would not get cold.
In early December, Marilyn was informed by C.W. that appellant had shown her magazines containing pictures of nude people. Marilyn and her daughters moved out of the house shortly thereafter. It was not until they had moved out that C.W. revealed that appellant had molested her.
At trial, C.W. testified that she was molested by appellant on at least five separate occasions. Specifically, she stated that appellant touched, licked and sucked her breasts and "private part." Using an anatomically correct doll, she showed the trial court that by "private part" she meant the vaginal area. She said that his tongue went inside the "crease." Appellant also rubbed his penis against her "private part" and a "wet and sticky" substance came out. Finally, C.W. testified that appellant stuck his finger inside her rectum. The parties stipulated that if Dr. Paul Mitchell was called to testify, he would state that there was no evidence of sexual penetration or abuse of C.W., but that insertion of an adult finger into the anus of an eight-year-old girl would not result in any detectable evidence.
In his first assignment of error, appellant asserts that 21 O.S.1981, § 886 and 21 O.S.Supp.1982, § 888, are unconstitutionally vague as applied to his conviction for Forcible Anal Sodomy because neither provision explicitly proscribes the act of inserting one's finger into another's rectum. These provisions are set forth below.
Every person who is guilty of the detestable and abominable crime against nature, committed with mankind or with a beast, is punishable by imprisonment....
Any person who forces another person to engage in the detestable and abominable crime against nature, pursuant to Section 886 of this title, upon conviction, is guilty of a felony punishable by imprisonment.... This crime may also be known as forcible sodomy.
As both the State and appellant correctly submit, this is a case of first impression. Never before has this Court been asked to interpret these provisions as proscribing an act which did not involve either the genitalia or the vagina. These statutes have been applied only to cases in which the defendant performed fellatio on the victim, see Golden v. State, 695 P.2d 6 (Okl.Cr.1985), where the defendant forced the victim to perform fellatio on him, see Phillips v. State, 756 P.2d 604 (Okl.Cr.1988), where the defendant performed cunnilingus on the victim, see Casady v. State, 721 P.2d 1342 (Okl.Cr.1986), where the defendant forced the victim to perform cunnilingus on her, see Salyers v. State, 755 P.2d 97 (Okl.Cr.1988), and where the defendant inserted his penis into the victim's rectum, see Miller v. State, 751 P.2d 733 (Okl.Cr.1988).
It is a well established rule of statutory construction that statutes are to be construed according to the plain and...
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