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STATE v. CRAWFORD

July 19, 1990.

STATE OF KANSAS, Appellee,
v.
RICHARD CRAWFORD, Appellant.



The opinion of the court was delivered by

This is a criminal action wherein Richard Crawford directly appeals his jury convictions of aggravated burglary, K.S.A. 21-3716; rape, K.S.A. 21-3502; and aggravated criminal sodomy, K.S.A. 21-3506. Crawford was sentenced to five to twenty years' imprisonment for the commission of aggravated burglary and to terms of ten to twenty years for each of the rape and aggravated criminal sodomy convictions. The sentences run concurrently. Crawford's motion to modify the sentences to probation was denied.

[247 Kan. 224]

     

The facts are in dispute and we therefore set them out in some detail.

  On the evening of July 25, 1986, fourteen-year-old C.H. babysat for her aunt and uncle, Dorothy and Sylvester. C.H. testified at trial that a man knocked on the door around 10:30 p.m. asking for Dorothy and Sylvester. C.H. told him they were not home and the man left. The man, later identified as Crawford, returned a short while later and again asked for Dorothy and Sylvester. Crawford told C.H. that Sylvester was coming up the street and, when C.H. opened the door slightly to look, Crawford pushed his way into the house. C.H. called her grandmother but before she could speak Crawford hung up the telephone. Eventually a struggle ensued between C.H. and Crawford. C.H. testified that she bit Crawford when he put his arm around her and that Crawford threatened to get a knife. At that point, Crawford ripped off C.H.'s clothing, took off his own, and raped C.H. C.H. testified Crawford then hit her, ordered her not to scream, and "put his mouth down between my legs." C.H. testified that Sylvester walked in at that point and Crawford told Sylvester that C.H. had invited him to the house earlier. C.H. called the police, and Crawford was arrested on the scene.

  Crawford had a different version of the events which he testified to. He claims C.H. said she would like some company when he knocked on the door seeking Dorothy and Sylvester. After leaving to speak with a friend, Crawford returned to the house and C.H. opened the door and invited him in. Crawford told C.H. he had returned to make love to her, and C.H. disrobed. Crawford denied that he and C.H. had sexual intercourse, but stated that while he was kissing C.H.'s breasts and stomach Sylvester arrived home. Until that point, Crawford believed C.H. was 21 years old. Sylvester informed him, however, that C.H. was only 14. Crawford did not want Sylvester to think poorly of C.H. and therefore told Sylvester that C.H. had seen him earlier and "invited him over." Crawford denied the performance of cunnilingus.

  An emergency physician who examined C.H. testified that C.H. told him she was raped and, in his words, cunnilingus was performed. The results of a vaginal examination were consistent with the history given by C.H. A police officer who transported

[247 Kan. 225]

      Crawford to the police station stated that Crawford told him about performing cunnilingus on C.H.

  Crawford first contends the trial court erred in its instruction on aggravated criminal sodomy because it failed to require the jury to find penetration and that there was insufficient evidence to sustain a conviction of aggravated criminal sodomy.

  When charging a jury in a criminal case, it is the trial court's duty to define the offense charged, either in the language of the statute or in appropriate and accurate language of the court. State v. Lashley, 233 Kan. 620, 629, 664 P.2d 1358 (1983).

  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, in part, as "oral or anal copulation. . . . Any penetration, however slight, is sufficient to constitute sodomy." K.S.A. 21-3501(2).

  The district court instructed the jury as follows:
"The defendant is charged with the crime of aggravated criminal sodomy. The defendant pleads not guilty.
"To establish this charge each of the following claims must be proved:
"1. That the defendant had oral sexual relations with [C.H.];
"2. That [C.H.] was a child who was not married to the defendant and who was under sixteen years of age; and
"3. That this act occurred on or about the 25th day of July, 1986, in Wyandotte County, Kansas."
  Crawford asserts the instruction given was erroneous because it failed to set forth the essential element that penetration occurred. The State responds that, although the instruction on aggravated criminal sodomy was erroneous, it was not fatal because Crawford made no contemporaneous objection thereto. When an instruction is not objected to at trial, this ...

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