564 S.W.2d 357 | Mo. Ct. App. | 1978
Defendant Eddie L. Crosby stands convicted of sodomy per os upon the person of a 19-year-old female who was seven months pregnant at the time. A jury has assessed his punishment at imprisonment for a term of six years. He appeals.
The offense was committed in what is consistently described as the “East end” of
After the fight was over, while the pathic was “standing out in the yard in front of [the] house where [she] lived,” two men “picked [her] up.” The pathic “thought they was goofing around” and “kept telling them to put [her] down.” She “grabbed Williametta’s shirt” and the defendant “hit [her] hand away.”
The two men did not release the pathic, but “carried [her] over into Charles Wright’s house,” which was “[r]ight next door.” The pathic was “taken into the bedroom” and “maybe a minute or minute and a half after that [defendant] walked through the door and come in.” Defendant told the other two men to leave. He then told the pathic “[Y]ou are going to do what I tell you,” and thereupon “pushed [the pathic] down on the bed and started to pinch [her] breasts.” The pathic told defendant to leave her alone, but defendant replied “just . . . shut up because [she] would have to do what [defendant] said.” The pathic was told to remove her clothes. She did so, and the defendant struck her “pretty hard” on the side of the neck, dazing her momentarily. The pathic thereupon testified:
* * * * * *
“A. I just started crying. I told him, ‘Just let me go home,’ so, anyway, he had put his left knee on my left arm and his right knee up above my head, and he— * * * * * *
Q. All right. What happened then? A. So, anyway, he had taken and unzipped his pants and took his male organ out and put it in my mouth and he was still pinching my breasts at the time.
* * * * * *
Q. Now, you say he then placed his organ into your mouth, is that right? A. Yes.
Q. What did you do at this point? A. I didn’t do anything. I couldn’t. I couldn’t do anything.
Q. You didn’t try to bite or anything like that? A. I never did think of it. I was so scared I didn’t know what to do. Q. How long did this go on? A. It wasn’t very long after that that he had reached a climax.
Q. He did? A. Yes, he did.
Q. What did he do then? A. He got up and he said, ‘Now, Mark is going to come in and you do as he says. If you don’t, I will be right outside the door.’
Q. Then he left? A. Yes.”
Section 563.230, RSMo (1969),
“[E]very person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished by imprisonment in the penitentiary not less than two years.”
This statute, though it is couched in common law terms, prohibits all deviate or aberrant acts of copulation, provided some degree of penetration is shown, and penetration may be proved circumstantially. State v. Pettijohn, 541 S.W.2d 74, 77-79[4][5][6] (Mo.App.1976). On appeal after conviction, the State is entitled to have the evidence considered in the light most favorable to the result reached, and is entitled to the benefit of all reasonable inferences fairly deducible from all the evidence. State v. Petrechko, 486 S.W.2d 217, 218[1] (Mo.1972). So considered, there is direct evidence of penetration of defendant’s penis into the pathic’s mouth, and the proof is sufficient to sustain the judgment of conviction. State v. Hubbard, 295 S.W. 788, 790[5] (Mo.1927).
We observe from examining the transcript that the jury’s verdict was re
Apparently recognizing the narrow scope of our review, defendant contents himself with the assertion of one ground of error, arguing that we should consider it as plain error pursuant to the provisions of Rule 27.20(c).
In this instance, the evidence complained of was that the pathic had seen the defendant on three prior occasions. On the first two occasions, she had seen the defendant while she was walking along a “path” which she used as a shortcut. On another occasion, when the pathic was living nearby but in different quarters, she started to enter the trailer where she lived with a female companion. Defendant was sitting in the “doorway” of the trailer. He moved to allow the companion to enter, but as the pathic “ . . . was fixing to go up [the steps] [defendant] kicked [her] in the stomach and knocked [her] backwards.”
The effect of this evidence must be con-' sidered in context. The defendant was not one of the men who carried the pathic from the scene of the fight to an adjoining house, and there was, in fact, evidence that the pathic was sexually assaulted by two other men after the defendant committed his so-domitic act upon her person. There was evidence that the neighborhood, called the “east end,” was poorly illuminated — “street lights at about every comer.” The offense was committed in a room where the lights had been extinguished. The only light “was lights coming through the window from the street light.” The whole sodomitic episode was rather brief. Given the detailed circumstances, the identity of the defendant was clearly in issue, the evidence complained of was properly received to establish the defendant’s identity, and the trial court did not err, much less err “plainly” in receiving it.
The evidence is ample to support the judgment; the defendant’s sole point on appeal is wholly without merit, and accordingly the judgment is in all respects affirmed.
All of the Judges concur.
. All references to statutes and rules are to this revision, V.A.M.S. and V.A.M.R.
. Which reads: “ . . . (c) [P]lain errors affecting substantial rights may be considered . . . on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”