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
The facts are in dispute and we therefore set them out in some
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
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
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
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
"To establish this charge each of the following
claims must be proved:
"1. That the defendant had oral sexual relations
"2. That [C.H.] was a child who was not married to
the defendant and who was under sixteen years of age;
"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 ...