dissenting.
Respectfully, I dissent.
We have placed beyond the reach of Randall Bills the same “rule of lenity” in construing criminal statutes to which the majority so recently showed great deference in Commonwealth v. Lundergan, Ky., 847 S.W.2d 729 (rendered 2/18/93). As we stated in the Lundergan case, “doubts about the meaning of a penal statute should be resolved[] ‘in favor of lenity’ ” and against a construction that would produce “harsh or incongruous results” or “disproportionate” punishment. Lunder-gan counsels us to remember “[t]he notions of fairness which lie at the heart of the rule.”
“Penal statutes are not to be extended by construction, but must be limited to cases clearly within the language used.” Woods v. Commonwealth, Ky., 793 S.W.2d 809, 814 (1990).
I respectfully suggest that Randall Bills is entitled to the same “notion of fairness” that we applied in former State Representative Gerald Lundergan’s case, albeit Bills’ crime is a repulsive sexual offense rather than a political one. The rule of lenity applies in a construction of any criminal statute which “does not expressly and unambiguously warn a potential violator” of penal consequences. Lundergan, supra, Draft Opinion, p. 6.
There are three different instances in this case where our Court decides close questions regarding the appropriate meaning to ascribe to the penal statutes at issue, and on each and every occasion-our Court elects to give the statutes in question a “harsh” rather than a “lenient” construction.
I. INSTRUCTION ON ATTEMPTED SODOMY
As the Majority summarizes, although the victim testified at trial that Bills “was able to place his penis in the victim’s mouth,” she also admitted that she had “told a Kentucky State Police detective in a written statement that she had kept her mouth shut.” It may well be, as the Majority states, that she stated “on cross-examination, she meant that she did not open her mouth voluntarily.” But there can be no doubt but that the jury rather than this Court should choose whether to believe the first account which she gave to the police or her testimony and explanation in court.
The construction the Majority of our Court gives to the sodomy statute eliminates the word “intercourse” from “deviate sexual intercourse,” and by so construing the statute eliminates the trial court’s error in failing to instruct on attempted sodomy. We hold that “penetration is not a necessary element to the crime of sodomy as defined in the penal code,” that mere contact between the penis and the mouth satisfies the definition of KRS 510.010(1). The statute states:
“ ‘Deviate sexual intercourse’ means any act of sexual gratification involving the sex organs of one (1) person and the mouth or anus of another.”
The question Bills raises is at what point does Bills’ attempt to obtain sexual gratification become an “act of sexual gratification.” [Emphasis added.] If, as the victim stated to the police, Bills got no further than “contact,” a common sense view of this scenario, however disgusting and repulsive, is he attempted to obtain sexual gratification by forcing oral intercourse upon the unfortunate victim, but failed to do so. It is an extremely harsh and unreasonable interpretation of the statute to deny a defendant on trial the right to an instruction under which the jury could find, if it so believed, that the facts never crossed the line between an attempt and a completed act.
Worse yet, by publishing this Opinion, we construe the statute as meaning in all cases that “ ‘mere contact’ between the penis and the mouth constitutes deviate sexual intercourse.” Sexual gratification may (or may not) occur from an attempt to commit oral intercourse stopped short of penetration.
*475The question here is not whether we believe sodomy occurred, as the victim so testified in court, but only whether there was evidence which justified an instruction on the lesser included offense. Do we really want to extend the statute to make “mere contact” subject to punishment as sodomy under all circumstances? Or should we leave it to the jury to decide whether the facts satisfied the statutory definition of “deviate sexual intercourse,” without adding to that definition? We have given an extremely severe interpretation to the sodomy statutes. Common sense tells us there are situations where sodomy has not occurred with “mere contact.” There was evidence from which the jury might have concluded that this is one of those situations.
II. INSTRUCTIONS ON FIRST AND SECOND DEGREE UNLAWFUL IMPRISONMENT
The elements of kidnapping (KRS 509.-040), as it applies in this case, differ from the elements of first-degree unlawful imprisonment only in that kidnapping requires the intent of the unlawful restraint to be “to accomplish or advance the commission of a felony,” while first-degree unlawful imprisonment requires only that the unlawful restraint be “under circumstances which expose [the victim] to a risk of serious physical injury.” Second-degree unlawful imprisonment simply requires knowing and unlawful restraint without regard to intent.
The evidence in this case underlying the charge of kidnapping was the victim’s testimony she was compelled at gun and/or knife point to go with the appellant, intending to force her to submit to felonious sexual assault. The appellant’s testimony, credible or not, was that the victim voluntarily undertook to drive him home, and that his efforts to engage the victim in a sexual act occurred only after the car ride had ceased, rather than constituting his purpose in taking the journey.
Under these circumstances, the appellant was entitled to instructions on the lesser included offenses of first and second degree unlawful imprisonment, and the trial court erred when it refused to give such instructions.
The Majority Opinion has avoided the error by suggesting the kidnapping conviction could apply to the period “that Bills held her [the victim] prisoner inside her motel room for at least 20 minutes while he struck, choked, threatened and touched her body in an inappropriate sexual manner.” Bills’ claim that he was entitled to instructions on first and second degree unlawful imprisonment as a lesser included offense rested on proof of his intent in the later act of transporting the victim in the car, rather than what occurred in the hotel room, so the Majority has concluded “[n]othing in the testimony of either witness to this [earlier] episode would justify an instruction on unlawful imprisonment.”
But this construction of the kidnapping statute is wrong for two reasons:
1) First it ignores the force and effect of KRS 509.050, which excludes an incident of restraint from the scope of the kidnapping statute when the interference with the victim’s liberty occurs immediately with and incidental to the commission of the offense charged, which in this case covers the offenses committed against the victim in the hotel room.
2) Second it ignores the trial court’s instructions, which implicitly recognized that the episode of restraint underlying the kidnapping charge was not the episode in the hotel room but taking the victim for a ride intending to accomplish a felonious sexual assault. The kidnapping instruction obviously intended to refer to this episode in the car rather than the earlier episode in the hotel room because they did not specify intent to “inflict bodily injury or to terrorize the victim KRS 509.040(l)(c),” but intent to “accomplish or to advance the commission of a felony KRS 509.040(l)(b).”
Appellant’s Brief cites the following quote from the ALI, Model Penal Code and Commentaries, Part II, § 212.2, pp. 240-42 (1980):
“[T]his section [unlawful imprisonment] comes into play for substantial removal ... that is not accompanied by one of the *476designated kidnapping purposes. Thus, for example, the actor who uses a gun to force another to drive him somewhere engages in unlawful restraint under circumstances exposing the victim to risk of serious bodily harm ... [I]f his purpose was merely to obtain transportation, he is liable only for the lesser offense of felonious restraint.”
The Majority’s Opinion here is in conflict with the ALI Model Penal Code from which the statutes in question were taken.
Thus, once again, the Majority Opinion ascribes an unreasonably broad interpretation to a statute, in this case the kidnapping statute, so as to avoid the trial court’s error in refusing instructions on the lesser included offenses.
III. PAROLE ELIGIBILITY
Finally, the Majority takes up the difference between KRS 532.080(7), which provides that the minimum parole eligibility for a person sentenced as a PFO I shall be ten years, and KRS 439.3401(3), which provides that the minimum parole eligibility for a person convicted as a “violent offender” (which the statute defines) shall be fifty percent of the sentence imposed, and reaches the indefensible conclusion that the statutes are “not in conflict.” The conflict is obvious in Bills’ case, because if the PFO statute prevails, he would be eligible to be considered for parole after he has served ten years, whereas under the violent offender statute he would not be eligible until he has served at least half of a sixty year term, or thirty years, subject, of course, to our recent judicial revision of the violent offender statute in Sanders v. Commonwealth, Ky., 844 S.W.2d 391 (1992), rendered 11/19/92, long after the present case was tried.
The Majority concludes the obvious intent of the General Assembly is that these statutes should be complete, and that minimum parole eligibility should not be controlled by either one of these statutes, but instead should be determined by applying whichever statute postpones parole eligibility for the longest possible time. The Majority gives no reason for believing the General Assembly intended that minimum parole eligibility should turn on which statute postpones parole eligibility for the longest time rather than the shortest time, and any decent consideration for the rule of lenity would demand the opposite interpretation.
The situation thus created by the Majority Opinion is one in which we will use the violent offender statute rather than the PFO statute, but only where it results in a more severe penalty. I see no consistency in straining the rule of lenity to cover the Lundergan case {supra), and then denying its application in present circumstances.
For the reasons stated, I dissent.
COMBS, J., joins this dissent.