Golden v. State , 1985 Okla. Crim. App. LEXIS 236 ( 1985 )

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695 P.2d 6 (1985)
Louis Daniel GOLDEN, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-83-584.
Court of Criminal Appeals of Oklahoma.
January 20, 1985.
Thomas G. Smith, Jr., Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen. of Okl., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

*7 OPINION

BRETT, Judge:

Louis Daniel Golden was charged by Information in Greer County District Court, Case No. CRF-82-17, with the Crime Against Nature (Sodomy), pursuant to 21 Ohio St. 1981, § 886. Appellant waived his right to a trial by jury, and was convicted by the Honorable William Fancher, Associate District Judge, who imposed a five (5) year sentence. We affirm.

S.S., a thirteen-year-old boy, had arranged with appellant to mow a lawn outside Granite, Oklahoma. After appellant and S.S. arrived at the location, they went inside the house. In an upstairs bedroom, appellant forced S.S. onto a mattress by tickling him. Appellant unsnapped the boy's pants and pulled them down. He placed S.S.'s penis inside his mouth. S.S. immediately jumped out of bed, exclaimed he "wasn't a fag", and ran from the home. Appellant eventually found S.S. and drove him back to Granite. The police were later informed of the incident.

Appellant admitted he and S.S. went into the house, but denied unzipping S.S.'s pants, tickling him, or putting S.S.'s penis in his mouth.

Appellant first alleges that 21 Ohio St. 1981, § 886 is unconstitutionally vague, and appellant's conviction therefore cannot stand. We disagree. This writer has for many years been of the opinion that section 886 is unconstitutionally vague on its face. See Canfield v. State, 506 P.2d 987, 989-990 (Okl.Cr. 1973) (Brett, J., concurring in part, dissenting in part). However, my colleagues on this Court and the justices of the United States Supreme Court, in construing similar statutes, have disagreed. See Moore v. State, 501 P.2d 529 (Okl.Cr. 1972), and Wainwright v. Stone, 414 U.S. 21, 94 S. Ct. 190, 138 L. Ed. 2d 179 (1973). Therefore, as a matter of stare decisis, I am compelled to uphold the statute and deny this assignment of error. See Clayton v. State, 695 P.2d 3, 55 O.B.J. 1786 (Okl.Cr. 1984).

Appellant's second assignment of error alleges the evidence was insufficient to support appellant's conviction. In Ex Parte DeFord, 14 Okla. Crim. 133, 168 P. 58 (1917), this Court held section 886 includes copulation per os, as alleged here. Penetration, however slight, is required to complete the offense. 21 Ohio St. 1981, § 887. S.S. catagorically stated appellant placed S.S.'s penis in his mouth. The evidence supports *8 the trial judge's finding that appellant engaged in unlawful oral copulation with S.S., and we will not disturb that finding on appeal. See Hill v. State, 368 P.2d 669 (Okl.Cr. 1962). This assignment of error is without merit.

Accordingly, the judgment and sentence of the District Court is AFFIRMED.

PARKS, P.J., concurs.

BUSSEY, J., concurs in result.