       Jr POR 'A XT-N-0 TICE
      NOT TO BE-PUBLISHED OPINION




THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CI VIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USEDAS A UTHORITYINANY OTHER
CASE IN ANY COURT OF THIS STA TE.
                                                   RENDERED OCTOBER 19, 2006
                                                        NOT TO BE PUBLISHED




           ,*uPrtmt Courf of
                                2005-SC-000780-MR


 CHARLES WAYNE FRENCH                                                   APPELLANT


 V.                APPEAL FROM JEFFERSON CIRCUIT COURT
                         HON . STEPHEN RYAN, JUDGE
                        INDICTMENT NO. 04-CR-002437


 COMMONWEALTH OF KENTUCKY                                               APPELLEE

                     MEMORANDUM OPINION OF THE COURT

                                    AFFIRMING

        The Appellant, Charles W. French, was convicted of Sodomy in the First

 Degree and three counts of Sexual Abuse in the First Degree, and sentenced to

forty-five years imprisonment. The victims were Appellant's step-daughter and

daughter, H.C. and S.M., who were five years and six years of age, respectively.

Appellant appeals as a matter of right pursuant to Ky. Const. § 110(2)(b),

asserting "palpable error' and arguing that the charge of Sodomy in the First

Degree (KRS 510 .070(1)(b)(ii)), was void ab initio, as it did not contain, or require

(pursuant to our previous decisions), one of the four culpable mental states set

out in KRS 501 .030.

       For reasons that neither KRS 501 .030 (Criminal Liability) or KRS 501 .050

(Absolute Liability) mandate, and KRS 510 .070 (Sodomy in the First Degree)

does not require such a culpable mental state for Sodomy, the Appellant's

conviction is affirmed .
       Sodomy in the First Degree with a person under twelve years of age

requires only that a person engage in deviate sexual intercourse with another

person, who is incapable of consent because he/she is less than twelve years of

age. KRS 510.070(1)(b) .      Deviate sexual intercourse is defined as "any act of

sexual gratification involving the sex organs of one person and the mouth or anus

of another." KRS 510.010(1).

       KRS 501 .030(2) on the other hand, commands only that the person

charged must have "engaged in such conduct intentionally, knowingly, wantonly

or recklessly as the law may require . . . ."(Emphasis added) . The Sodomy

statute, of course, does not require such a state of mind. It requires "deviant

sexual conduct," i .e., an "act of sexual gratification," which is a jury question that

was decided adversely to Appellant. This is consistent with our previous rulings

in Malone v. Commonwealth , 636 S.W.2d 647- 48 (Ky. 1982) and Isaacs v.

Commonwealth , 553 S.W.2d 843, 845 (Ky. 1977). See also, Meadows v.

Commonwealth , 178 S.W.3d 527, 532 (Ky. App. 2005) ("[T]he statute for first-

degree rape does not require any particular state of mind, such as intent or

knowledge.") .

       In Malone , supra , we stated :

       Appellant nonetheless argues that a culpable mental state is
       required for all criminal offenses by KRS 501 .050 unless the
       offense is a violation, misdemeanor, or one defined outside the
       Penal Code, which rape and sodomy clearly are not.

       We addressed this same argument in Isaacs v. Commonwealth ,
       Ky., 553 S.W.2d 843 (1977), as it related to the rape of a child
       less than twelve years old (KRS 510.040(1)(b)(2)) . There we
       decided the act completed the offense without regard to the
       mental state with which it was done . We reached our decision by
       comparing the pre-code offense of carnal abuse of a child with the
       new statutory rape definition and concluded that no specific
        mental state need be shown. See also Hatfield v. Commonwealth ,
        Ky., 473 S.W.2d 104 (1971).

        Prior to the enactment of the Penal Code, we held that forcible
        rape could not be mitigated or excused on account of the
        accused's drunkenness . Abbott v. Commonwealth , 234 Ky. 423,
        28 S.W.2d 486 (1930). The act itself constituted the offense
        without other indicia of intent . Coots v. Commonwealth , Ky., 418
        S .W.2d 752 (1967). We do not think the drafters of the Penal
        Code intended to inject the elements of intent or knowledge, as
        they are defined in KRS 501 .020, into the crimes of forcible rape
        and sodomy so as to make voluntary intoxication available as a
        defense . Our conclusion is supported by the commentary to the
        code where it was stated, "substantively the crime of rape has not
        changed ." Kentucky Penal Code, Final Draft of 1971,
        Commentary to s 1115 at 131 .

Malone, 636 S.W.2d at 647-48 (emphasis added) .

       In Isaacs, supra, we stated essentially the same, to wit:

        In regard to the second tendered instruction, we have consistently
        held that in cases where the doing of the act constitutes a crime
        regardless of the intention with which the act was done, the
       defendant is not entitled to an instruction on lack of mental
       capacity to form an intent to commit the crime due to intoxication .
       Coots v. Commonwealth , Ky., 418 S.W.2d 752 (1967) ; Hatfield v.
       Commonwealth , Ky., 473 S.W .2d 104 (1971) . Appellant, however,
       cites KRS 501 .030 to .050 to argue the ". . . law of Kentucky has
       been changed by an obvious and unambiguous legislative
       pronouncement . . ." so that a culpable mental state must now be
       shown in order to convict an accused of the crime of rape. We
       have carefully considered these sections of the Penal Code and
       remain firm in our belief that the carnal abuse of a child is a crime
       without regard to the reasons or the intent with which it was done,
       so that an instruction such as the one under consideration in this
       case should not be given. Here our conclusion is fortified by the
       commentary to KRS 510.040, rape in the first degree, which
       specifically states ". . . The mere act of sexual intercourse with a
       child under 12 completes the offense . . . ."

Isaacs , 553 S .W.2d at 845 (emphasis added).

       A review of KRS Chapter 510 (Sexual Offenses) illustrates that the

drafters of the Penal Code were well aware of the potential interplay of the

mental states in regard to the sexual offenses set out therein . See e.g.,, KRS
 510.150(1)( "A person is guilty of indecent exposure . . . when he intentionally

 exposes . . . ... )(emphasis added) . Thus, had the Legislature intended to require

 a specific mental state in the offenses of rape and sodomy, as opposed to the

 conduct specified, they would have .   Moreover, they have been free to do so for

the last twenty-nine years, and have not. Their failure to do so evidences their

agreement with the results in Malone and Isaacs, supra, if not their logic.

        Perhaps, however, a better explanation for the language employed in the

rape and sodomy statutes could be given as it exceeds the bounds of human

reason to argue that one could pursue an act of sexual gratification (or create

"forcible compulsion") without an appropriate level of consciousness necessary to

achieve it, whether one remembers it the next day, or not! But this realization

also supports the results mandated in Malone and Isaacs, supra, in denying the

defense of voluntary intoxication to such charges. If one commits rape or

sodomy, he/she obviously was not so intoxicated as to obviate the

consciousness necessary to accomplish the crime . Thus, the defense of

voluntary intoxication will always be physically incompatible with the facts of

these crimes, irrespective of the mental state argued .

       In any event, we are convinced the Legislature intended for a rape or

sodomy to be complete when the elements set out therein occur and twenty-nine

years of precedent back them up.

       There being no error in any event, the Appellant's conviction is affirmed .

       Lambert, C.J. ; Graves, McAnulty, Roach, Scott and Wintersheimer, JJ.,

concur. Minton, J., concurs in result only.
COUNSEL FOR APPELLANT

J . David Niehaus
Deputy Appellate Defender
Office of the Jefferson
District Public Offender
200 Advocacy Plaza
719 W. Jefferson Street
Louisville, Kentucky 40202

COUNSEL FOR APPELLEE

Gregory D Stumbo
Attorney General

Todd D. Ferguson
Assistant Attorney General
Office of the Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
