STATE v. KILMARTIN
Missouri Court of Appeals, Western District
904 S.W.2d 370 (1995)

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

SPINDEN, Presiding Judge.

[Kilmartin was convicted of forcible sodomy and sentenced to life in prison.] . . . His complaint is that the state did not present sufficient evidence from which the jury could have found "forcible compulsion." . . .

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 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 he succumbed to Kilmartin's overwhelming tactics. Kilmartin intended his physical force to subdue any notion of resistance. Although this case is near the outer limits as to what constitutes forcible compulsion, we conclude that the jury's verdict was reasonable and supported by sufficient evidence. No one looking at this situation with any amount of objectivity could conclude, as Kilmartin asserts, that M.J.S.' consented.

Kilmartin cites us to State v. Daleske, 866 S.W.2d 476, 478 (Mo.App.1993), in which the court suggested in dicta that a perpetrator's using his hands to guide a girl's mouth to his penis was not physical force. The state in that case, however, had not submitted the definition in § 556.061(12)(a), used in this case, but had used the alternative definition in § 566.061(12)(b). [FN3] Because the Daleske court's holding did not concern § 556.061(12)(a), it made its suggestion in passing and did not consider whether the totality of the circumstances would render the force exerted to be sufficient. We do not find any guidance in Daleske.