Criminal Law: Statutory Sodomy-Jury Instructions-Consecutive Sentences

Where a defendant challenged his convictions for statutory sodomy and child molestation, the trial court did not err in overruling the defendant’s objection to jury instructions on the statutory sodomy counts because any variance in the definition of “deviate sexual intercourse” in the instructions and in the information was not material or prejudicial, and the judgment is affirmed because the imposition of consecutive sentences was not a due process violation.

Mistaken belief

Dissenting opinion by Ahuja, J.: “The circuit court mistakenly believed that Cruz-Basurto’s sentences on Counts IV and V had to run consecutively to his sentences for the other statutory sodomy offenses, when the court actually had discretion as to whether those sentences should run concurrently or consecutively. Because of the relationship of Cruz-Basurto’s sentences on all of the first-degree statutory sodomy counts, his sentences for each of those offenses should be vacated, and the case remanded for resentencing.”

Judgment is affirmed.

State v. Cruz-Basurto (MLW No.72982/Case No. WD80880 – 28 pages) (Missouri Court of Appeals, Western District, Ardini, J.) Appealed from circuit court, Jackson County, Harrell, J. (Nathan J. Aquino for respondent) (S. Kate Webber for appellant).