State v. Simmons , 86 Utah Adv. Rep. 12 ( 1988 )

ZIMMERMAN, Justice:

Defendant Gene Simmons appeals from convictions on one count of rape of a child and two counts of sodomy upon a child. Defendant was sentenced to three concurrent minimum mandatory terms of ten years to life. The two sodomy convictions are affirmed. However, the rape conviction is reversed.

Defendant lived with V. and her three children, A., a girl, and T. and G., boys, from approximately January of 1982 until May of 1985, when allegations of sexual abuse were made against him. He was later charged by information with raping A. “on or about May 5, 1985” and with sodomizing T. and G. On appeal, defendant attacks all convictions. We consider first the rape conviction.

Simmons contends that the evidence was insufficient to sustain the conviction because there was no showing of penetration, as required by Utah Code Ann. § 76-5-407(2) (Supp.1985). That section provides in pertinent part:

(2) In any prosecution for unlawful sexual intercourse, rape, or sodomy, any sexual penetration ... however slight, is sufficient to constitute the offense.

The first question is the definition of “penetration.” If that term requires entry into the vaginal canal of the victim, there is no question that the evidence here is insufficient. This Court has never expressly addressed the question of whether “penetration” requires proof that the penis of the defendant or, in the case of object rape, the object being used to commit the rape, entered the vaginal canal of the victim or whether it is sufficient if it is merely inserted between the outer folds of the victim’s labia. However, the generally accepted rule is that entry between the outer folds of the labia is sufficient to constitute “penetration” as that term is commonly used in defining the crime of rape. See 65 Am.Jur.2d Rape § 3 (1972). Our prior decisions are entirely consistent with this proposition. See State v. Warner, 79 Utah 500, 505-06, 291 P. 307, 309 (1930), vacated on other grounds, 79 Utah 510, 13 P.2d 317 (1932) (citing Reg. v. Lines, 1 Car. & K. 393 (O.S.C.1844)). We therefore declare it to be the definition of penetration under section 76-5-407.

In light of the foregoing, the question here is whether there was evidence sufficient to support the jury’s finding beyond a reasonable doubt that defendant’s penis was between the folds of A.’s labia during the incident on or about May 5, 1985, which is charged in the information. We conclude that there was not sufficient evidence. A. testified that defendant put the tip of his penis “on” her labia. At no time did she testify that defendant put his penis between the outer folds of her labia, much less in her vagina. There was no evidence of penetration on or about May 5, 1985, beyond the testimony of the victim.¹

The jury’s implicit and necessary finding that penetration occurred despite the lack of adequate evidence may be explained. During trial, the jury heard evidence of a series of incidents between defendant and A. stretching over a period of almost three years.. During some of those incidents, defendant did place his penis between A.’s outer labial folds. On at least one occasion, his penis penetrated the vaginal canal. On others, he apparently only touched his penis to the outside of the folds. However, the trial judge admitted this evidence of prior crimes for the limited purpose of showing intent, opportunity, or plan with respect to the May 5th incident. See Utah R.Evid. 404(b). In addition, the court instructed the jury that to find defendant guilty of rape, it had to find that he had sexual intercourse with A. “on or about the 5th day of May, 1985.” No objection was received as to this instruction. In light of the limited purpose for which the evidence was admitted, the narrow specificity of the charge in the information, and the similar specificity in the jury instructions, the jury could not properly have taken into account the ample evidence of other incidents of rape committed upon the same victim in determining whether penetration had occurred on May 5, 1985.²

For the foregoing reasons, we reverse ike conviction of rape.³

Defendant also challenges his conviction on two counts of sodomy upon the two boys. No purpose would be served by setting defendant’s arguments out here at length. We have considered them in detail and find that no harmful error occurred.

The conviction of rape is reversed. The two sodomy convictions are affirmed, as are the two minimum mandatory ten-year sentences on those charges.

1 . The Chief Justice in dissent reads the record differently. He relies principally on the inconsistent and confusing description given by the prosecutor of what A. was demonstrating to the jury on an anatomically correct doll. However, we conclude that a fair reading of the testimony regarding the anatomical doll leads only to the conclusion that the victim was demonstrating that defendant had placed his penis on her labial folds.

2 . It is worth noting that in State v. Fulton, 742 P.2d 1208 (Utah 1987), cert. denied, - U.S. -, 108 S.Ct. 777, 98 L.Ed.2d 864 (1988), we made it clear that the precise date of the offense need not be charged and proven as an element of every crime. It is enough that the defendant is "sufficiently apprised of the particulars of the charge to be able to ‘adequately prepare his defense.’ ” Id. at 1214 (quoting State v. Burnett, 712 P.2d 260, 262 (Utah 1985)). Had defendant been put on notice that he was being tried for all of the instances of rape to which the victim and other witnesses testified, the lack of proof of a precise date for each incident would not necessarily have been fatal to the State's case. Id. at 1213. However, here the State chose to proceed on a very narrow charge. This decision was its undoing.

3 . The likelihood of jury confusion was enhanced by the prosecutors closing argument in which she repeatedly focused on the evidence of prior incidents of molestation, rather than on what occurred on May 5th. This argument clearly strayed from the charge in the information and from the jury instructions, both of which required a finding of penetration on or about May 5th.

In short, the case presented to the jury was built upon evidence of prior crimes that Simmons was never charged with committing.