State of Kansas, Appellee, v. Richard Crawford, Appellant, 247 Kan. 223

The opinion of the court was delivered by Herd, J.: 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.

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 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 arid that there was insufficient evidence to sustain a conviction of aggravated criminal sodomy. When charging a júry 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; ánd “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. Thé 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 court’s scope of review is limited to a determination of Whether the instruction Was clearly erroneous. State v. Maxwell, 234 Kan. 393, 399, 672 P.2d 590 (1983); State v. James, 217 Kan. 96, 100, 535 P.2d 991 (1975). Both arguments are without merit because Crawford was incorrectly charged with aggravated criminal sodomy. Recently, in State v. Moppin, 245 Kan. 639, 783 P. 2d 878 (1989), We deter^ mined that cunnilingus, sexual’activity with the tongue and the female sex organ, was not‘an act of’sodoiny. 245 Kan. at 644.

We ruled in Moppin that cunnilingus did not constitute “oral copulation,” an essential element of sodomy as it was charged. 245 Kan. at 643. Syllabus ¶ 1 stated: “Oral-genital stimulation between the tongue of a male and the genital area of a female, commonly known as cunnilingus, is not included in the definition of‘sodomy’found at K.S.A. 21-3501(2) . . . .” Moppin holds that cunnilingus is not sodomy under Kansas statutes regardless of penetration. The dissent attempts to rewrite Moppin making penetration the missing element causing us to find the offense charged wás not sodomy.

As illustrated above the decision did not turn on penetration, it turned on the definition of oral copulation which does not include cunnilingus. Even though this writer was the sole dissenter in Moppin, he believes it proper appellate procedure to accept statutory

interpretation by this court as the law of the state and await legislative action, which has occurred. See L. 1990, ch. 149, § 14(2). This action was prosecuted under the prior statute. Similar to Moppin, Crawford was improperly charged and there was insufficient evidence to establish oral copulation. The State more properly should have charged Crawford with indecent liberties with a child. We conclude Crawford’s conviction for aggravated criminal sodomy must be reversed. Crawford next contends the trial court erred in failing to instruct the jury on attempted rape.

Pursuant to K.S.A. 21-3107, the trial court has an affirmative duty to instruct on all lesser included offenses required by the evidence even when such instruction is not requested. State v. Everson, 229 Kan. 540, 542, 626 P.2d 1189 (1981). The trial court’s duty arises, however, only when there is evidence upon which a defendant might reasonably be convicted of the lesser charge. State v. Royal, 234 Kan. 218, 221, 670 P.2d 1337 (1983). Attempted rape is a lesser included offense of rape. K.S.A. 21-3107(2)(b). In the present case, C.H. testified that Crawford had sexual intercourse with her without her consent.

The examining physician testified a vaginal examination revealed a slight tear at the opening of the vagina and an irritation to the cervix. The physician testified that such evidence was consistent with C.H.’s claim of sexual assault. Crawford testified that some sexual contact occurred, but that he did not have sexual intercourse with C.H. In State v. Galloway, 238 Kan. 415, 710 P.2d 1320 (1985), with facts similar to the case at hand, the defendant denied having had sexual intercourse with the victim, but admitted some consensual sexual contact had occurred.

The defendant argued the trial court erred in failing to instruct the jury on attempted rape. We stated the evidence showed the victim was either raped or there was consensual sexual contact; thus, there was no evidence of an attempted rape and no error in not giving the instruction. The same rule applies in the present case. C.H.’s testimony and the testimony of the examining physician indicate rape. If the jury believed Crawford’s testimony, it would find some sexual contact but no forcible rape. No evidence was presented upon which Crawford might reasonably have been convicted of attempted rape.

We find no error in not giving the instruction. Crawford’s final argument is that the instruction given on aggravated burglary was erroneous because it omitted the essential element that a human being was inside the house. Crawford argues the jury could have found only the elements of a simple burglary and therefore his conviction for aggravated burglary should be set aside. K.S.A. 21-3716 defines aggravated burglary, in pertinent part, as the knowing and unauthorized entry into a building in which there is some human being, with the intent to commit a felony therein.

Simple burglary is defined in the same manner but does not require the presence of a human being inside the building. K.S.A. 21-3715. As we stated above, however, Crawford’s failure to object to the instruction at trial limits our scope of review to a determination of whether the instruction was clearly erroneous. State v. Maxwell, 234 Kan. at 399. An instruction is clearly erroneous when the appellate court is firmly convinced there is a real possibility the jury would have returned a different verdict if the district court had not erred. State v. Clements, 241 Kan. 77, 81, 734 P.2d 1096 (1987); State v.

Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 (1977). The trial court has a duty to inform the jury of every essential element of a crime charged. State v. Redford, 242 Kan. 658, 671, 750 P.2d 1013 (1988); State v. Houck, 240 Kan. 130, 138, 727 P.2d 460 (1986). The trial court’s instruction on aggravated burglary, omitting an essential element, was clearly erroneous. Cole v. Young, 817 F.2d 412, 423 (7th Cir. 1987); United States v. Hiscott, 586 F.2d 1271, 1275 (8th Cir. 1978).

The presence of a human being within the building burglarized is the only distinction between aggravated burglary and the lesser crime of simple burglary. Thus, omission of this essential element in the instructions provided to the jury was clearly erroneous as the jury could find no more than simple burglary. The appellant’s convictions of aggravated criminal sodomy and aggravated burglary are reversed. The appellant’s conviction of rape is affirmed.