State v. Beaulieu

OPINION PER CURIAM. This case came before this Supreme Court pursuant to an order directing both the state and the defendant to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments of counsel and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown and that the issues raised will be summarily decided at this time. The defendant, Edward J. Beaulieu, appeals from a judgment of conviction entered on February 13, 1995, following guilty verdicts by a jury on one count of first-degree sexual assault upon a minor and two counts of second-degree sexual assault upon a minor. The three charges involved sexual assaults by the defendant committed upon his stepdaughter in 1981 when she was seven years of age. The explanation for the ostensibly late trial (G.L.1956 § 11-37-11.2) on the charges is that the defendant failed to appear *378 for Ms originally scheduled trial and was missing until 1994 when he was found and arrested in Florida on a fugitive warrant. In Ms appeal the defendant argues that we should set aside Ms conviction on the first-degree sexual assault charge involving the act of cunnilingus. He bases that argument upon Ms contention that the trial justice had, prior to trial, granted Ms pretrial motion m limine to prevent the state from presenting any evidence of “penetration” of the victim. At argument at the show cause hearing, the defendant’s appellate counsel alleged a pretrial stipulation between the prosecutor and defense counsel to the effect that the victim would not testify to any digital or penile penetration by the defendant, only that there was “some lickmg of the vagma” by the defendant. We have read the transcript and disagree with defendant’s version of the so-called stipulation-between-counsel contention, as well as Ms interpretation of the ruling made by the trial justice on his motion in limine. The trial record reveals that the trial justice, m passmg upon the defendant’s motion in limine, stated that in his opinion “the touching by a mouth to female vagina is in and of itself cunnilingus, which is and of itself is prohibited under the statute.” The prosecutor then told the trial justice and defense counsel that the state was not alleging any penile or digital penetration and would limit its proof to the defendant’s “licking of the victim’s vagma.” At that point the trial justice granted defendant’s motion “as modified” (Emphasis added.) We need not, and do not, however, reach defendant’s stipulation and motion-in-limine contentions for purposes of our review. We find m the trial record more than sufficient evidence, outside the alleged stipulation, that supports the jury’s verdict and the defendant’s conviction. G.L.1956 § 11-37-1(8) does not require actual penetration, only sexual penetration. State v. Cembrola, 469 A.2d 362, 366 (R.I.1983). The young victim in tMs case testified that the defendant had “licked her vagma.” If that act occurred, that was cunnilingus, which does not require penetration. Cunni-hngus is medically defined as “sexual stimulation by licking or kissing the vulva or clitoris; a type of oral genital sexual activity.” Stedman’s Medical Dictionary 346 (6th Unabridged Lawyers’ Ed.1982). The “vulva” is defined as the covering “of the external genitalia of the female.” Id. at 1671. All that is required to establish the first-degree sexual offense of cunnilingus is that the cunnilin-guist lick or kiss the female genitalia, and penetration of the vagina is not necessary. State v. Cassey, 543 A.2d 670, 679 (R.I.1988). From both the statutory and the medical anatomy viewpoint, the act of cunnilingus, which requires the male tongue to reach the female vagina, assumes the necessary penetration or mtrusion into the female genitalia. State v. Cassey, 543 A.2d 670 (R.I.1988). Cunnilingus does not require actual vaginal penetration. State v. Cembrola, 469 A.2d 362 (R.I.1983). As regards the trial justice’s instructions to the jury regarding the act of cunnilingus and its relationship to first-degree sexual assault, we find no error therein. For all the above reasons, the defendant’s appeal is denied and dismissed. The judgment of conviction is affirmed, and the papers of the case are remanded to the Superi- or Court. WEISBERGER, C.J., and MURRAY, LEDERBERG and BOURCIER, JJ., concur. FLANDERS and SHEA, JJ., not participating.