State v. GeorgeState v. George
Following jury trial defendant was convicted of “use of a child in a sexual performance” which inflicted serious emotional injury on the child.
Thе first point of defendant’s that we discuss is his contention that the evidence was insufficient to support the charge. Defendant states in this point (omitting names) “that the evidence establishes that the appellánt forced [his 12 year-old son] and [defendant’s wife, the child’s mother] to dance and engage in sexual intercourse in the family home but that no sexual performance took place.”
The charge against defendant was based on
Child used in sexual performance, penalties.—
1. A person commits the crime of use of a child in a sexual performance if, knowing the character and content thereof, the person employs, authorizes, or induces a child less than seventeen years of age to engage in a sexual performance or, being a parent, legal guаrdian, or custodian of such child, consents to the participation by such child in such sexual performance.
2. Use of a child in a sexual performance is class C felony, unless in the course thereof the person inflicts serious еmotional injury on the child, in which case the crime is a class B felony.
“Sexual performance” is defined as “any performance, or part thereof, which includes sexual conduct by a child who is less than seventeen years of age.” § 556.-061(29), RSMo Supp.1984. “Sexual conduct” includes among other acts “sexual intercourse; or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual stimulation or gratification.”
There was evidence that defendant arrived home between one and three a.m. after having been in a tavern since he had gotten off work at noon. After eating, he infоrmed his wife that it was time for their 12-year-old son to learn about sex. Under threat of force he had his wife wake up their son and made him dance with her while she was nude. When they resisted, he hit his wife with a belt, at one time knocking her out. Whenever they stopped dancing defendant hit them with his belt. During this time he advised the son as to various things he should do when dancing with a woman. He instructed him to put his mouth on his mother’s breast and to “squeeze her butt” and to move his penis around his mother’s vagina while they danсed.
After they had danced for awhile, he told his wife to lie down on the couch and told his son to lie on top of his mother without his pants on. He ordered his wife to place the son’s penis in her vagina. It went only slightly in because the penis was not erect. Defendant then instructed the son to move his hips up and down. When the mother untruthfully informed defendant that the son had “come”, he let them stop. Defendant’s wife said that defendant’s watching them “seemed to turn him on.” After the son went to bed, defendant and his wife went to bed and had sexual intercourse.
Under this point defendant cites only one case,
State v. Thomas,
Defendant contends that what occurred at his home between his wife and son was not a “performаnce”, apparently contend
In argument under this point, defendant’s brief refers to the portion of § 568.-100.1(2), RSMo Supp.1984, which states that when it is necessary to determine whether a child who has participated in a sexual performance wаs under seventeen years of age, the court or jury may make the determination by various methods, including, “inspection of the photograph or motion picture that shows the child engaging in the sexual performance”.
Although § 568.080 would prоhibit a sexual performance for photographs or motion pictures, it is not limited to such performances. Performance can be used to connotate a public display, see
Grove Press, Inc. v. Evans,
Undoubtedly, § 568.080 and its accompanying sections prohibit the exploitation of minors under seventeen in pornographic presentations for any reason, including profit, but lack of a profit motive does not prevent there being a “performance” where the acts come within the plain and literal meaning of the statute.
Defendant required the child to perform and watched him. If performance requires an audience or рresentation by film or other reproduction, one person who is a member of the family can be the audience. There is no exception in the statutes for a “family” performance. Although defendant may have been as muсh director as he was audience, he was apparently carefully viewing the occurrences. Certainly, the circumstances here could have been as injurious to the minor as if viewed by non-family members. Preventing such damages is undоubtedly one of the purposes of § 568.080.
The evidence was sufficient to support the charge against defendant. This point is denied.
Defendant’s remaining points pertain to the jury instructions.- The next point of defendant’s that we discuss states:
Thе trial court erred in giving non-MAI Instruction 7, the definition of sexual performance fromSection 556.061 RSMo offered by the state over the objection of appellant because technical terms which may be misapplied by the jury must be defined or explained in a verdict-directing instruction in such way as to give the jury a correct idea of their meaning in that the definition of sexual performance provided to the jury defined a sexual performance as “any performancе or part thereof, which includes sexual conduct by a child who is less than seventeen years of age” and a performance thus being defined as a performance the jury was given no correct idea of the meaning of thе term.
Instruction number 7 contained two definitions. The definition complained of stated:
Sexual performance means any performance or part thereof, which includes sexual conduct by a child who is less than seventeen years of age.
This instruction follows the statutory definition of “sexual performance” re
“any performance, or part thereof, which includes sexual conduct by a child who is less than seventeen-years of age.”
This definition defines whаt the “sexual” aspect of the performance is and the age of those included within its prohibition, but not what is a “performance”. Defendant complains that because of this “the jury was given no guidance as to what constitutes а performance.” Defendant states that this instruction failed to define the prohibited conduct in a precise fashion, stating in his brief:
It is not possible to determine from the state’s definition whether a sexual performance is any deed done by a child less than seventeen years of age which includes sexual conduct or if a more specific range of conduct such as prohibiting performances in the sense of events staged for dramatic or pornographic presentations is intended to be prohibited by this statute.
As discussed previously, we believe performance was used by the legislature in a broad sense which would include a wide range of viewed conduct beyond that which might be done for photographic reproduction, or other preservation, or before a non-family audience.
Performance, as used here in a non-contractual sense, is a commonly used word and one that the jurors wоuld understand. Technical terms which may be misapplied by the jury must be defined or explained to them,
State v. Rodgers,
Here, the technical part of the term sexual performance was defined so that the jury could understand it. The remainder, what is a “performance”, is not defined in the statute nor was it defined for the jury, but it is a word of common knowledge and the jury was not misled by its use. It was apparently appliеd by them in the broad sense intended. We agree that it would have been clearer for the legislature not to have defined “sexual performance” by including part of that term in the definition, but the definition instruction was not misleading or erronеous. This point is denied.
Defendant’s remaining point asserts that the trial court erred in giving the verdict directing instruction and the instruction defining sexual performance because they required the jury to find that defendant’s son “engaged in sexual intercourse which is not an element of the charged offense and therefore the jury’s attention was directed to an issue which was not relevant to the charge.”
The portion of the submission instruction complained of, (omitting the boy’s name) stаtes that the jury must find “that the performance or any part thereof included [defendant’s son] engaging in sexual intercourse and sexual contact”. Defendant does not complain of the reference to “sexual contaсt” in the instruction, only of the use of “sexual intercourse”.
Defendant contends that “the evidence, argument, and the complained of instructions combined to suggest to the jury that a sexual performance and an act of sexual intеrcourse were synonymous.” He claims he was prejudiced by these instructions because “the addition of an element that was not a part of the offense charged and the proof of said element directed the attention of the jury from the dispositive issues of the case.”
Both “sexual contact” and “sexual intercourse” were defined for the jury by an instruction stating:
“Sexual contact” means any touching of the genitals or anus of any person, or the breast of any female person, or any such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person.
“Sexual intercourse” means any penetration, however slight, of the female sex organ by thе male sex organ, whether or not an emission results.
This instruction followed MAI-CR2d 33.-01 and definitions in Missouri statutes.
A “sexual performance” requires “sexual conduct”.
Moreover, even if “sexual intercourse” should not have been referred to in the instruction, defendant was not рrejudiced by it being included as it put an additional burden on the state, requiring that the jury find it and sexual contact. A defendant may not complain of criminal jury instructions which operate to his advantage by putting a burden on the state beyond that legally required.
State v. Lowery,
The judgment is affirmed.
Notes
As used in Chapter 573, “‘Performance’ means any play, motion picture film, videotape, dance or exhibition performed before an audience".