# Kimbro v. State

> Court of Criminal Appeals of Oklahoma · January 12, 1990 · 857 P.2d 798

URL: https://www.frixlaw.com/law-library/cases/5164903

## Case

- **Full name:** Jeffrey Mark KIMBRO v. STATE of Oklahoma
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** January 12, 1990
- **Citations:** 857 P.2d 798; 1990 OK CR 4; 1990 Okla. Crim. App. LEXIS 4; 1990 WL 2046
- **Precedential status:** Published
- **Opinion:** Concurring in part by Parks
- **Judges:** Brett, Johnson, Lane, Lumpkin, Parks
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5164903

## How later opinions describe it (automated extraction)

- concluding that defendant who challenged adequacy of notice in charging document that alleged he committed two counts each of forcible anal sodomy and forcible oral sodomy during the same five-month period had sufficient notice of the charges against him and was “not exposed t…
- holding that jury instruction stating that child under 16 can't consent to sodomy didn't "negate[ ]" § 888's force requirement

## Opinion text

PARKS, Presiding Judge,
concurring in part/dissenting in part:
In appellant’s first assignment of error, he asserts that the trial court erred in instructing the jury that a child under the age of sixteen (16) cannot consent to either anal or oral sodomy. I agree. Appellant was charged with committing several acts of forcible sodomy under 21 O.S.Supp.1982, § 888. The trial court properly instructed the jury that “force” is an essential element of such crimes. However, it is my opinion that the element of force was negated by the inclusion of the aforementioned consent instructions.
The word “force”, by its definition, necessarily encompasses a lack of consent. See Black’s Law Dictionary 330 (5th ed. 1983) (Unlawful force defined as “[fjorce, including confinement, which is employed without the consent of the person against whom it is directed_”). Thus, by instructing the jury that a child under the age of sixteen (16) cannot consent to sodomy, the trial court effectively relieved the State from its burden of proving beyond a reasonable doubt that force was employed. This position is further substantiated by the remarks made by the prosecutor during closing argument. In emphasizing the instructions at issue, the prosecutor conceded that “although [the victim] didn’t fight him every time, and didn’t scream or throw fits, basically it appears he submitted to those acts. A child under the age of 16 cannot commit and cannot give consent to those activities.” (Tr. 444-45)
I also cannot concur in overruling Slaughterback v. State, 594 P.2d 780 (Okl.Cr.1979). Slaughterback is inapplicable to the present case in that it addresses consent under 21 O.S.1981, §§ 886 and 887. The issue herein concerns the element of force as set forth in the forcible sodomy statute, § 888. Moreover, Slaughterback correctly states the law as it applies to §§ 886 and 887. The Oklahoma Legislature has never included a chronological age limitation for consent in any of the sodomy statutes and one should not be added by this Court.
It is established law in Oklahoma that penal statutes are to be interpreted strictly against the State and liberally in favor of the accused, and words not found in the text of a criminal statute will not be read into it for the purpose of extending it or giving it an interpretation in conformity with a supposed policy.
State v. Humphrey, 620 P.2d 408, 409 (Okl.Cr.1980).
Accordingly, I would reverse appellant’s convictions for forcible sodomy and remand those counts for a new trial. Finding no error which requires modification or reversal of appellant’s conviction for Indecent or Lewd Acts with a Child Under the Age of Sixteen, I concur in the affirmance of the same.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5164903. Public record. Not legal advice.