The opinion of the court was delivered by
This is a criminal action in which Ralphetta Schad directly
appeals her jury convictions of two counts of aggravated criminal
sodomy, K.S.A. 21-3506, and one count of aggravated incest,
K.S.A. 21-3603. Schad was sentenced to imprisonment for a period
of ten to twenty years on each count of aggravated criminal
sodomy and for a period of three to ten years for the aggravated
incest offense. The sentences run consecutively.
The facts giving rise to this case are as follows: On September
9, 1988, five-year-old J.P. spent the afternoon with her
godmother, Diana Lyons. Lyons testified that J.P. cried
hysterically when it was time to go home and told Lyons she was
go because Bill (defendant's friend), Maurice (defendant's
boyfriend), and the defendant (J.P.'s mother) put their fingers
and tongues on her private part. Lyons further testified that
J.P. also said her mother made her three-year-old sister, S.J.,
put her mouth "down there." Lyons also stated that earlier in the
summer J.P. had spent the night with Bill and when Lyons had
arrived to pick up J.P., J.P. said she had to put on her
underpants and retrieved them from the living room floor and put
J.P. told Shaun Price, an investigating officer, that Bill,
Maurice, and her mother touched her with their fingers and
tongues in her private area. J.P. also told the officer these
people gave her mother money before they came into J.P.'s bedroom
and undressed her.
Dixie Simpson, the nurse who examined J.P., testified that J.P.
told her J.P.'s mother and "everybody" touched her in the private
place and J.P. pointed to her genital area. J.P. also told the
nurse that "they [defendant, Bill, Maurice, and S.J.] stuck their
tongues in there, ain't that gross." A pelvic examination
revealed a reddened area on the inner walls of the vagina.
At trial, tape-recorded interviews with J.P. were introduced
into evidence and played for the jury. During the interview with
a police officer and a social worker, J.P. marked the vaginal
area on anatomically correct drawings to show where Bill and
Maurice touched her. At trial and during the interview, J.P.
testified that Bill touched her in the genital area with his
finger and tongue while she stayed at his home. J.P. also stated
that Maurice gave her "bad touches" with his finger and tongue.
J.P. further testified that her mother touched her in her private
place with her tongue and fingers and that her mother also made
S.J. touch her in the private place with her finger and tongue.
Finally, J.P. stated that her mother received money, a toy dolly,
candy, Raggedy Andy, a toy car, and a big slide for allowing Bill
and Maurice to touch J.P.
Schad was charged with three counts of causing a child to
engage in oral sodomy under the aggravated criminal sodomy
statute, K.S.A. 21-3506(b), and one count of engaging in oral
copulation with her five-year-old daughter under the aggravated
incest statute, K.S.A. 21-3603. Schad was acquitted on the
criminal sodomy involving Maurice and convicted on all other
counts. This appeal followed.
Schad first contends insufficient evidence exists to support
the convictions of aggravated criminal sodomy because the State
failed to prove oral or anal copulation.
In a criminal action, when the defendant challenges the
sufficiency of the evidence to support a conviction, the standard
of review on appeal is whether the evidence, viewed in the light
most favorable to the prosecution, convinces the appellate court
that a rational factfinder could have found the defendant guilty
beyond a reasonable doubt. The appellate court considers only the
evidence in favor of the verdict to determine whether the
essential elements of the charge are sustained. State v.
Walker, 244 Kan. 275, 280, 768 P.2d 290 (1989).
K.S.A. 21-3506 provides: "Aggravated criminal sodomy is: . . .
. (b) causing a child under 16 years of age to engage in sodomy
with any person." "Sodomy" is defined, in part, as oral or anal
copulation. K.S.A. 21-3501(2). Schad contends the aggravated
criminal sodomy convictions must fall because there is no
evidence of sodomy by oral copulation. We must agree.
In State v. Switzer, 244 Kan. 449, 456, 769 P.2d 645 (1989),
we stated the first phrase of K.S.A. 21-3501(2) prohibits
nonconsensual penetration by the male sex organ into a mouth or
anus. Clearly, ...