State v. Kilmartin

• Decision Date: 13 June 1995
• Docket Number: Docket Nos. WD
• Citation: 904 S.W.2d 370
• Parties: STATE of Missouri, Respondent, v. Mark KILMARTIN, Appellant. Mark KILMARTIN, Appellant, v. STATE of Missouri, Respondent. 47244, WD 49202.
• Court: Missouri Court of Appeals

Page 370

904 S.W.2d 370

STATE of Missouri, Respondent, v. Mark KILMARTIN, Appellant.

Mark KILMARTIN, Appellant, v. STATE of Missouri, Respondent.

Docket Nos. WD 47244, WD 49202.

Missouri Court of Appeals,

Western District.

June 13, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 1, 1995.

Application to Transfer Denied

Sept. 19, 1995.

Susan L. Hogan, Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

Before SPINDEN, P.J., and ULRICH and SMART, JJ.

SPINDEN, Presiding Judge.

Mark R. Kilmartin complains in this appeal of his sodomy conviction and life sentence that the state did not present sufficient evidence to support the jury's verdict. We conclude that the state presented sufficient evidence to support the facts hypothesized in the verdict-directing instruction. This case, however, raises a troubling problem of which Kilmartin does not complain: The verdict-directing instruction varies significantly from the charge set out in the information. Kilmartin did not preserve the issue at trial. Although the matter captures our attention for plain error review, we do not grant Kilmartin relief because the variance did not result in manifest injustice.

Kilmartin does complain, in addition, that the trial court wrongly permitted the state to present evidence of pornography found in his house and his prior child molestation charges in another state. He also challenges the denial of his Rule 29.15 motion for postconviction relief. He argues that he established at a hearing on the motion that he was deprived of his constitutional rights to participate in individual voir dire proceedings following general voir dire and to have effective assistance of trial counsel. We affirm the judgments of conviction and denial of his Rule 29.15 motion.

Sufficiency of Evidence and Variance of Verdict-Directing

Instruction and Information

A grand jury indicted Kilmartin on May 15, 1991, of seven counts of sodomy in violation of § 566.060. ¹ On August 28, 1992, the state substituted an information for the indictment. The state submitted three counts to the jury which convicted Kilmartin of only one count.

In the count on which the jury convicted Kilmartin, the indictment accused him of having, on March 17, 1991, "deviate sexual intercourse with [M.J.S.], to whom [Kilmartin] was not married and who was then less than fourteen years old, without the consent of [M.J.S.] by the use of forcible compulsion." This allegation tracked § 566.060.1 which said, "A person commits the crime of sodomy if he has deviate sexual intercourse with another person without that person's consent by the use of forcible compulsion."

In the substituted information, the state charged Kilmartin with having, on March 17, 1991, "deviate sexual intercourse with [M.J.S.], to whom [Kilmartin] was not married and who was then less than fourteen years old, without the consent of [M.J.S.]" That charge tracked § 566.060.3 which said, "A person commits the crime of sodomy if he has deviate sexual intercourse with another person to whom he is not married who is less than fourteen years old." The information, however, added the element "without ... consent" contrary to the statute.

At trial, the court instructed the jury:

As to Count I, if you find and believe from the evidence beyond a reasonable doubt:

First, that on or about March 17, 1991, in the County of Clay, State of Missouri, [Kilmartin] placed his hand on the penis of [M.J.S.], and

Second, that such conduct constituted deviate sexual intercourse, and

Third, that [Kilmartin] did so without the consent of [M.J.S.] by the use of forcible compulsion, and

Fourth, that [Kilmartin] knew he was engaging in the conduct described in paragraph First without the consent of [M.J.S.] by forcible compulsion,

then you will find [Kilmartin] guilty under Count I of forcible sodomy.

Kilmartin does not complain about the instruction's variance from the information. His complaint is that the state did not present sufficient evidence from which the jury could have found "forcible compulsion." We will first address his complaint and then turn to the variance issue.

The instruction defined "forcible compulsion" according to § 556.061(12)(a): "[p]hysical force that overcomes reasonable resistance[.]" Kilmartin contends:

[T]here was no evidence of any actual physical force used against [M.J.S]. In fact, [Kilmartin] expressly repudiated any intention of using force against [M.J.S]. A mere statement that force could be used does not constitute "physical force that overcomes reasonable resistance", as required by Section 556.061(12) to establish "forcible compulsion."

Kilmartin asserts that because the state did not establish forcible compulsion, the trial court erred in (1) overruling his motions for judgment of acquittal at the close of the state's evidence and at the close of all of the evidence; (2) submitting the count to the jury; (3) accepting the jury's verdict of guilty on the count; and (4) sentencing Kilmartin to life in prison on the count.

The incident for which Kilmartin was charged occurred while Kilmartin was alone in his house with 11-year-old M.J.S. lifting weights. M.J.S. had met Kilmartin at a skating rink where Kilmartin was a "disc jockey" and "floor guard." Kilmartin, who was 30-years-old at the time of trial, fostered a friendship with M.J.S. by taking him to movies, letting him into the skating rink without paying, letting him use speed skates without charging him, buying him food, and having him spend the night at his house once or twice when other boys M.J.S.' age were there. M.J.S. considered Kilmartin to be his friend.

On Sunday evening, on March 17, 1991, Kilmartin called M.J.S. and asked whether he wanted to go skating. M.J.S. agreed. His parents were napping, so he did not ask their permission, but they had forbidden his returning to Kilmartin's house. M.J.S. walked down the street from his house and waited for Kilmartin to pick him up. When Kilmartin arrived, he told M.J.S. that he was hungry and suggested going to a shopping mall to get food. The mall was closed when they arrived. Although the skating rink was still open, Kilmartin suggested going to his house to learn karate instead of skating.

Alone at Kilmartin's house, Kilmartin showed M.J.S. some karate moves, and they later began lifting weights. As they worked with the weights, Kilmartin asked M.J.S. whether he wanted "a penis massage." M.J.S. answered, "No." He later asked again, and M.J.S. again said no. Kilmartin moved behind M.J.S. as M.J.S. sat on a weight bench. Kilmartin grabbed him ² and, while holding M.J.S., said, "I could force you, but I'm not that kind of guy." This frightened M.J.S., but Kilmartin asked again once or twice. Kilmartin asked still again, and M.J.S. finally relented.

Kilmartin told him to go to the bedroom and to lie on the bed. As M.J.S. laid on the bed, Kilmartin stood beside it and told the boy to pull down his pants. M.J.S. did not comply until Kilmartin told him a second time. M.J.S. was still frightened when he pulled down his pants and closed his eyes. Kilmartin massaged M.J.S.'s penis for 20 to 30 seconds.

M.J.S.' mother interrupted the episode by driving her car into Kilmartin's driveway. When he heard the car, Kilmartin stopped. He and M.J.S. went out to the car. M.J.S. got in and left with his mother. His mother said nothing to Kilmartin.

M.J.S.' parents were angry that he had gone to Kilmartin's house. M.J.S. did not volunteer any information about the incident until, back home, M.J.S.' father asked him what had happened. M.J.S. told him of Kilmartin's "penis massage," and his father called the police.

This was sufficient for the jury to find physical force which would overcome reasonable resistance. Kilmartin acknowledges that M.J.S. testified that he was "scared," but argues that Kilmartin did not exert "actual physical force." He is wrong.

"Physical force" is "[f]orce applied to the body[.]" BLACK'S LAW DICTIONARY 1147 (6th ed. 1990). Kilmartin's holding M.J.S. and grabbing him was force applied to M.J.S.' body.

The totality of the circumstances determines whether this was physical force which would overcome reasonable resistance. Reasonableness is that which is "suitable under the circumstances." BLACK'S at 1265. Such circumstances in this context would include the ages of the victim and the accused; the atmosphere and setting of the incident; the extent to which the accused was in a position of authority, domination and control over the victim; and whether the victim was under duress. "[T]he law does not require or expect the utmost resistance to sexual assault when it appears that such resistance would be futile or would provoke more serious injury." State v. R--- D--- G---, 733 S.W.2d 824, 827 (Mo.App.1987).

Under the circumstances of this case, Kilmartin's physical force was sufficient to overcome an 11-year-old boy's reasonable resistance. Kilmartin, while exerting his physical force, threatened further force in no uncertain terms. He repeatedly asked for M.J.S.' consent, to the point that coupled with the threat, it became demanding. They were alone in Kilmartin's house where Kilmartin controlled and dominated and where M.J.S. would likely feel trapped. Although he put the boy under duress by frightening him, he persisted until M.J.S. succumbed.

Kilmartin did not use a weapon or twist M.J.S.' arm, but he exerted force which was every bit as overpowering as a gun. Kilmartin reinforced his physical force--grabbing the boy and holding him--with many psychological factors intended to instill fear and wear down the boy's resistance. Kilmartin calculatedly increased his pressure on the boy: first coaxing him with favors and requests before resorting to threats and physical force. It became apparent to M.J.S. that resistance would be unsuccessful, and h...