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762 S.W.2d 540

State v. Fowler

Missouri Court of Appeals

Decided December 27, 1988

Missouri Court of Appeals · decided 1988-12-27

Cited by 7 later decisions — most recently March 1997

7 state decisions

Relies on State v. Singer · State v. Pendergrass · State v. Franklin

Good law ✅— No negative treatment on recordhow we know

Decided 1988-12-27

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GRIMM, Judge,

¶1concurring.

¶2I concur, except as to the statement of the majority “that we are without power to declare approved pattern instructions erroneous.”

¶3Although there are many cases supporting this “principle,” it is currently being questioned. State v. Gunter, 715 S.W.2d 576, 579 (Mo.App.S.D.1986) (Crow, C.J., concurring); State v. Singer, 719 S.W.2d 818, 823 (Mo.App.W.D.1986) (Dixon, J., dissenting); State v. Pendergrass, 726 S.W.2d 831, 834 (Mo.App.S.D.1987) (Maus, J., concurring); and State v. Franklin, 752 S.W.2d 937, 942 (Mo.App.E.D.1988) (Grimm, J., concurring). I continue to believe that this court has the authority to review claims of error in the pattern instructions for the reasons set forth in the cited cases.

¶4Here, the pattern instruction is not erroneous, for it contains all of the essential elements. In paragraph First of MAI-CR 3d 320.08.2, the user is told to “Describe acts constituting deviate sexual intercourse.” A way to follow that direction, as applicable to the facts here, would have the latter part of paragraph First read “the defendant committed a sexual act involving his hand and the genitals of [name of victim].” By so doing, the instruction would contain all of the elements and acts consti*542tuting deviate sexual intercourse, §§ 566.-010.1(2) and 566.060.3, RSMo 1986.

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