State v. Luttrell

VAN HOOMISSEN, J.,

pro tempore.

Defendant appeals his convictions for sodomy and sexual abuse of a six-month old child for whom he was providing day care. We affirm.

Defendant first contends that the trial court erred in denying his motion for a judgment of acquittal. He argues that there is no evidence to support his convictions. We disagree. Viewing the evidence in the light most favorable to the state, State v. Arnold, 90 Or App 596, 599, 752 P2d 1300 (1988), we conclude that the state introduced sufficient evidence from which a rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. That is sufficient to withstand a motion for judgment of acquittal. See ORS 136.445; State v. Harris, 288 Or 703, 609 P2d 798 (1980); Jackson v. Virginia, 443 US 307, 99 S Ct 2781, 61 L Ed 2d 560 (1979).

Defendant also argues that, because the state failed to prove actual sexual penetration, he cannot be convicted of sodomy. Again, we disagree. Under ORS 163.405(1) (b), a person who engages in “deviate sexual intercourse” with a person under 12 years of age commits sodomy in the first degree. ORS 163.305(1) defines deviate sexual intercourse to mean “sexual conduct between persons consisting of contact between the sex organs of one person and the mouth or anus of another.” The plain language of the relevant statutes, and the commentary to ORS 163.405, demonstrate that sexual penetration is not an element of the offense of sodomy in the first degree.

Defendant’s argument that ORS 163.405 is unconstitutionally vague lacks merit. See State v. Cornell/Pinnell, 304 Or 27, 29-30, 741 P2d 501 (1987); State v. Robertson, 293 Or 402, 411 n 8, 649 P2d 569 (1982); State v. Pagel, 16 Or App 415-416, 414, 518 P2d 1037, rev den (1974). Defendant’s conduct is clearly proscribed by the statute.

Defendant next contends that the trial court erred in admitting polygraph evidence. He relies on State v. Lyon, 304 Or 221, 744 P2d 231 (1987), a case that was decided several months after he was convicted and had filed his notice of appeal in this case.

At trial, a polygraph examiner testified about the results of a polygraph examination that he had given defendant. The testimony was not favorable to defendant. The evidence was received without objection pursuant to a stipulation of the parties. Unlike the defendant in Lyon, defendant here failed to object at trial to the polygraph evidence. Thus, the question was not preserved for appeal, and we will not consider it. State v. Hickman, 273 Or 358, 360, 540 P2d 1406 (1975); State v. McDonald, 77 Or App 267, 269 n 2, 712 P2d 163 (1986); ORAP 7.19(5). Griffith v. Kentucky, 479 US 314, 107 S Ct 708, 93 L Ed 2d 649 (1987), cited by defendant, does not support a different conclusion. In that case, the defendant raised and preserved the relevant question at trial.

We decline to consider the question as an error of law apparent on the face of the record. See ORAP 7.19(5). The Lyon rule is a rule of evidence, not a rule of criminal procedure that is mandated by either the state or federal constitution. When the stipulated polygraph evidence was received, it was admissible. See State v. Brown, 297 Or 404, 687 P2d 751 (1984); State v. Bennett, 17 Or App 197, 521 P2d 31, rev den (1974). The language of Lyon indicated that its new rule excluding stipulated polygraph evidence was to have prospective application:

“The same considerations that compelled us to conclude in Brown that polygraph results are inadmissible over the objection of either party compel us now to conclude that polygraph evidence is inadmissible for any purpose in any legal proceeding subject to the rules of evidence under the Oregon Evidence Code, and henceforth its admission, pursuant even to the parties’ stipulation, is error.” 304 Or App at 233-234. (Emphasis supplied.)

Affirmed.