Opinion
No. 26386
March 29, 2005
Appeal from the Circuit Court of Taney County, Honorable John S. Waters, Special Judge.
Randy Anglen, Randall S. Anglen, P.C., Branson, Mo, for Appellant.
Jeremiah W. Nixon, Attorney General, and Lacey R. Searfoss, Assistant Attorney General, Jefferson City, Mo, for Respondent.
John W. Vandevere appeals from his conviction, following a bench trial, on the charge of felony sexual abuse, under § 566.100, RSMo 2000. Vandevere's single point relied on contends that the trial court erred in convicting Vandevere because finding him guilty was against the weight of the evidence, in that there was no evidence that he had sexual contact with the victim by forcible compulsion.
Section 566.100.1, RSMo 2000 provides: "A person commits the crime of sexual abuse if he subjects another person to sexual contact by the use of forcible compulsion." The State submits that, applicable to the circumstances here, "forcible compulsion" is "physical force that overcomes reasonable resistance." § 556.061(12)(a), RSMo 2000. "Physical force is force that is applied to the body." State v. Spencer , 50 S.W.3d 869, 873 (Mo.App. 2001). "Reasonableness is that which is `suitable under the circumstances.'" State v. Kilmartin , 904 S.W.2d 370, 374 (Mo.App. 1995) (quoting BLACK'S LAW DICTIONARY 1265 (6th ed. 1990)).
At oral argument, State's counsel, in response to a question, said the State was not contending that there was "forcible compulsion" due to any threats, express or implied. See § 556.061(12)(b), RSMo 2000.
In determining whether there was physical force which would overcome reasonable resistance, certain cases have applied a "totality of the circumstances" test. State v. Niederstadt , 66 S.W.3d 12, 15 (Mo.banc 2002); State v. Campbell , 143 S.W.3d 695, 699 (Mo.App. 2004); State v. Gomez , 92 S.W.3d 253, 256 (Mo.App. 2002); Spencer , 50 S.W.3d at 874; and Kilmartin , 904 S.W.2d at 374. These courts have considered the following factors in weighing evidence proving the element of forcible compulsion: "(1) whether violence or threats preceded the sexual act; (2) the relative ages of the victim and accused; (3) the atmosphere and setting of the acts; (4) the extent to which the accused was in a position of authority, domination, and control over the victim; and (5) whether the victim was under duress." Campbell , 143 S.W.3d at 699.
Appellate review of a court-tried criminal case is limited to a determination of whether the State introduced sufficient evidence at trial to allow a reasonable fact-finder to find each of the elements of the offenses charged beyond a reasonable doubt. State v. Bewley , 68 S.W.3d 613, 617 (Mo.App. 2002). Accepting as true all evidence and reasonable inferences therefrom that are favorable to the verdict and disregarding contrary evidence and inferences, id. , we set forth the following facts.
Vandevere was fifty-eight years old at the time of the alleged abuse, and the alleged victim ("victim") was sixteen years old. The incident occurred at a Radisson Hotel in Branson, where Vandevere had taken victim so that she could model clothing and help him in deciding which outfit Vandevere would provide for young women in a dance group with which he and his wife were involved. Victim and Vandevere had separately participated as vendors in a week-long competition held at Branson U.S.A., an amusement park in Branson, and had become friendly and visited with each other throughout the week. Victim received permission from her mother to accompany Vandevere to try on clothing, although neither her mother nor victim knew he would be taking her to his hotel room. Victim testified that she assumed they would be going to a store or some other public place.
After Vandevere and victim left the amusement park, he drove her to the Radisson Hotel. She testified that when they arrived at the hotel, she "was kind of shocked. I just stood there and looked, trying to figure out what we were doing, and then that's when he grabbed my hand and we started walking."
They went to Vandevere's room on the second floor. He chained and deadbolted the door behind them once they were in the room. From a suitcase, Vandevere produced two pairs of pants and five shirts. He handed victim a pair of pants and a shirt and asked her to change clothes in the bathroom. She locked the bathroom door and changed into the outfit. When she came out of the bathroom, she stood in front of the bathroom door. Vandevere was sitting on the end of the bed closest to the bathroom.
The victim testified that Vandevere "told me that it looked good on me and that he wanted to see what it felt like on me." She stated, "I just kind of stood there because I was kind of nervous at that time, because I didn't know what was going on, so then he told me to come sit on his lap, and he kind of had to stand up a little bit, and he grabbed my hand and pulled me over to — and sat me on his knee."
When asked to describe how Vandevere "grasped" her, she responded: "[H]e grabbed my hand and he kind of had to jerk my arm — like jerk me just a tad bit to get me over there." He then sat her on his left knee. She further stated: "He told me that I felt good in it, and then he started rubbing. . . . He had his left hand on my back, it was like up closer to my neck, and then he started going down my back all the way to my butt, and then he had his right hand on my leg. . . . I didn't say anything. I was kind of scared."
The victim testified that she tried on five outfits, and each time she changed her clothing in the bathroom with the door locked and stepped outside into the room so that Defendant could see the outfits. Each time she did this, Defendant would "put [her] back on his knee" and "started rubbing some more." When the prosecutor asked, "Did he ever rub on your clothes over [your vagina]?" victim responded affirmatively.
For one of the clothing changes, Defendant asked victim to remove her bra to try on a shirt. She testified that when she emerged from the bathroom, Defendant "stood me in between his legs and I stood there instead of sat on his lap. . . . At that time, he had his hands — like he was rubbing my butt a lot, and he lifted my shirt up and started kissing on my breasts and stuff. . . . At one point, he had his mouth on one side of my breast, and he has his right hand on the other one, and then he had his left hand on my butt." Victim testified that she started to cry at this point, but "didn't say anything. . . . I was really scared at that time because I didn't really know what was going on. It was just new to me, different."
When Defendant was ready to take her back to Branson U.S.A., he told her they "should hurry up and go and get back before someone suspected something. . . . And then he told me that I couldn't say anything because I could ruin him. . . . I wasn't allowed to speak about what happened."
There was additional testimony that Defendant wanted victim to return to his room with him that same evening so that they could work on her "self-esteem." But when victim returned to the amusement park, she let others know what had happened in the hotel room, and the authorities were contacted.
"Each case necessarily turns on its own facts." Niederstadt , 66 S.W.3d at 15. We examine the facts in order to establish whether there was evidence of forcible compulsion. We must find physical force that overcomes reasonable resistance. See § 556.061(12)(a). As illustrations of forcible compulsions, both parties cite Niederstadt and Kilmartin , supra, in their arguments
In Niederstadt , supra, the Supreme Court found the evidence sufficient to establish forcible compulsion, in that the fear engendered by defendant's prior violent conduct against victim made it likely she would not resist his assaults. At issue was whether the physical force employed by the defendant was sufficient to overcome reasonable resistance. The victim was sixteen years old, and the defendant was "about forty years of age[.]" 66 S.W.3d at 15. Prior to the sexual assaults, the defendant had beaten and threatened the victim frequently. The abuse had taken place in defendant's home where the victim had been sent by her parents to live, and she was totally dependent upon the defendant for subsistence. There was evidence that defendant beat and whipped the victim "about once per month during her stay[.]" Id. at 14. Defendant also engaged in "inappropriate kissing on the lips and fondling . . . and touching" of the victim. Id. Several instances of deviate sexual intercourse were alleged, to which defendant admitted one such instance. The court cited no evidence of resistance by the victim, however, it found that "the same fear that kept her from reporting the sexual assaults also was likely to overcome her ability to resist those assaults." Id. at 15.
In Kilmartin , supra, the Western District noted that although "this case is near the outer limits as to what constitutes forcible compulsion," the court concluded that the guilty verdict was "reasonable and supported by sufficient evidence." 904 S.W.2d at 374. There, the victim was an eleven-year-old boy, and the accused was in his late twenties. The two had spent time together going to movies and the skating rink where the accused worked. The boy considered Kilmartin to be his friend. While lifting weights at Kilmartin's home one day, Kilmartin asked the boy "whether he wanted `a penis massage.'" Id at 373. When the boy said "no," Kilmartin asked again, and the boy again refused. Then "Kilmartin grabbed him and, while holding [the boy], said, `I could force you, but I'm not that kind of guy.'" Id. Kilmartin asked again a couple of more times, and finally the boy relented. The court found:
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.'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.
Id. at 374.
Vandevere compares State v. Daleske , 866 S.W.2d 476 (Mo.App. 1993) with the facts of this case. In Daleske , the Western District found that there was no evidence of forcible compulsion. The victim in Daleske was seventeen years old at the time of trial and alleged that her step-father began sexually abusing her when she was seven years old. She related instances where her step-father threatened grounding or loss of privileges if she did not comply with his wishes. The victim testified regarding an incident in her step-father's car when he pulled the car off the road and wanted her to perform fellatio. "He . . . unzipped his pants, removed his penis, took her head and guided her mouth to his penis so she could perform fellatio." Id. at 478. The State contended that the holding of her head and guiding her mouth to his penis constituted physical force that overcame reasonable resistance. The court did not agree:
While we conclude there was no evidence of forcible compulsion, this is not to say that Daleske employed no compulsion. Indeed, the compulsion involved in introducing a child to these activities arises from the dependency and age of the child. Once the child has been drained of self-respect, compliance may tend to continue. However, this kind of compulsion, at least based on the evidence in this case, fails to attain the level contemplated by the definition of "forcible compulsion" in the statute.
Id. at 479.
We find other cases instructive in determining whether there has been forcible compulsion. In Spencer , supra, the Eastern District used the "totality of the circumstances" test to find that defendant, a psychologist and therapist convicted of sexually abusing two young women, M.M. and A.G., exerted physical force in "grabbing [victim's] arm and pulling her up and bending her over a chair." 50 S.W.3d at 874. In determining whether such physical force would overcome reasonable resistance, the court considered (1) defendant's position of authority over the victims; (2) that the offenses occurred when defendant and victims were alone in his office, placing defendant in a position of domination and control; (3) that M.M. "felt she was forced to see defendant because it was a condition of her probation"; (4) that A.G. "was only sixteen years old at the time of the attack; and (5) that defendant threatened A.G., "stating that he could ruin [her] chances of getting into Job Corps." Id. M.M. testified that she told defendant that she did not want to engage in any sexual activities, id. at 872, that she did not resist because she thought it would be futile, and that defendant was much bigger than she. Id. at 875. A.G. testified that she told defendant she was not comfortable with the fondling and told defendant to stop, but she did not fight back because she feared "that more harm would befall her if she resisted," id. at 875, and because defendant was bigger than she. Although neither victim "tried to punch, fight, or prevent defendant from engaging in any sexual activities[,]" the court found that "defendant's actions constituted forcible compulsion against both [victims]." Id. at 875. "[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." Id. at 874.
While "utmost resistance" is certainly not required, some evidence of resistance, or a legitimate reason for not resisting, must be shown. In Gomez , supra, this court reversed a conviction for forcible rape after a bench trial, wherein the trial court merely "inferred physical force from the victim's mental capacity." 92 S.W.3d at 255. There was evidence that the victim was "a nineteen-year-old female, with a mental capacity between four and eight years." Id.
In a well-reasoned and detailed opinion, the trial court found that although there was no evidence of any threats, express or implied, or testimony about physical force, the mental capacity of the victim was dispositive on the issue of forcible compulsion. There was no testimony from the victim that she was afraid of Defendant. The court inferred physical force from the victim's mental capacity. The court indicated that the defendant was "clearly bigger than the victim" and his size alone would constitute physical force and/or an implied threat. The victim was just shy of five foot and weighed about 105 pounds.
. . . .
[T]he court indicated that because of the circumstances of the victim having the mind of a child, forcible compulsion occurred.
Id.
In reversing the trial court's conviction, this district relied "upon the finding of the trial judge who indicated that there was no evidence of any threats, express or implied, or testimony about physical force." Id. at 256-57. There was "no testimony regarding the Defendant's knowledge of the victim's mental capacity" and "no testimony that the victim was afraid of the Defendant." Id. at 257. Finding that "[w]e cannot equate the victim's lack of mental capacity alone to be sufficient to satisfy the forcible compulsion element[,]" id. , defendant's conviction was reversed and the case was remanded with instructions that the trial court enter a judgment of acquittal and discharge defendant. Id. at 259.
If a victim believes that resistance would be futile or if the victim was in fear of serious bodily injury, resistance would not be required. In Campbell , supra, the defendant contended, in part, that the State failed to prove the element of forcible compulsion under four of five counts of forcible sodomy. 143 S.W.3d at 698. Upon examining the "totality of the circumstances," the Western District found that evidence that victim's prior attempts to resist the abuse were "overcome by physical force and implied and express threats of physical force" and constituted a "reasonable fear of serious physical injury to herself" such that victim could reasonably believe that resistance was futile. Id. at 699. Defendant's superior strength, his threats of beatings if victim did not submit, and his frequent use of physical violence against victim and other members of her family were noted by the court in its determination that these circumstances "created an implied threat of serious physical injury to [victim] if she resisted." Id.
In State v. Thiele , 935 S.W.2d 726 (Mo.App. 1996), defendant's conviction under one count of attempted forcible sodomy was affirmed upon the appellate court's finding that evidence was sufficient to establish that defendant committed the offense by use of forcible compulsion. There, the victim, believing she was interviewing for a shoe-modeling position, agreed to meet with two marketing people. Only one person, defendant, kept the appointment. While waiting outside in victim's car, defendant shared personal information and told victim that the woman for whom they were waiting often set him up with women who modeled shoes for men who had shoe fantasies. Victim believed defendant had a gun in his right-hand pocket, and when defendant asked her to start the car, she did so. Defendant instructed victim where to drive and continued discussing his fantasies while rubbing his penis through his pants. Victim feared she would be raped. After defendant told victim to stop the car, he asked her to model some shoes, and she complied. Defendant continued stroking himself and then pulled down his pants. When he produced a stethoscope and asked victim to listen to his heartbeat while he masturbated, victim complied. At one point, Defendant "grabbed victim's arm and, squeezing it hard, pulled her hand toward his penis, saying, `I want you to touch me.'" Id. at 728. Victim jerked her hand away and told him she couldn't do that. Defendant continued to masturbate, and when he was finished, they drove back to the WalMart store and defendant left.
In Thiele , the victim was not a voluntary participant in defendant's fantasy, and she feared that defendant had a gun. The appellate court determined that "[t]he evidence was clear victim only submitted to the defendant's `requests' out of fear of personal violence. Her belief she would be harmed, in conjunction with the physical force defendant applied against victim, constituted sufficient evidence of forcible compulsion to sustain defendant's conviction." Id. at 729. "A victim does not have to physically resist where she submits to an offensive act out of fear of personal harm." Id.
At trial in the instant appeal, Defendant's counsel tried to elicit just how much force Defendant used. On cross-examination, counsel asked victim "about this alleged grab."
Q. . . . Now, this is more of kind of guiding than actually a jerk, right, on your hand?
A. If you call "guiding" pulling me toward him.
. . . .
Q. He was more guiding you than pulling you, correct?
A. He was pulling me.
Q. Now, I asked you how much force he used. You said, "He didn't have a lot — He didn't use a whole lot of force," right?
A. Not enough to pull me over and make me fall.
Q. He didn't pull you off balance, did he?
A. No.
Q. And you didn't resist, did you?
A. No.
. . . .
Q. Didn't he actually motion you come over instead of pulling you over?
A. He did motion, but then when I didn't move, he pulled me over.
On appeal, Vandevere concedes that he used "minimal `physical force[,]'" but he contends that such force did not constitute forcible compulsion. At oral argument, counsel conceded that his client may have been "manipulative," a "con man," and his motive may have been "to see how far things went." The State's evidence would so indicate. However, as counsel argued, there was insufficient force shown here.
"[T]he force used must be calculated to overcome the victim's resistance and complete the act. . . ." Niederstadt , 66 S.W.3d at 15. Based on our examination of the totality of the circumstances in determining whether Vandevere employed physical force sufficient to overcome victim's reasonable resistance, we do not find that the State introduced evidence to find each element of the offense charged beyond a reasonable doubt. See Bewley , 68 S.W.3d at 617.
We cannot reach a finding of forcible compulsion under the law, in part, because we do not find that victim's testimony that Vandevere "pulled" her toward him and sat her on his lap can justify a finding that Vandevere employed physical force sufficient to overcome reasonable resistance. We have considered the setting of the incident (the two of them alone in Vandevere's locked hotel room), the respective ages of Vandevere and the victim (he was fifty-eight and she was sixteen), and victim's testimony that she was "shocked," "nervous," "didn't know what was going on," and "was kind of scared."
However, there is very little evidence of any kind of resistance. It was the victim's own testimony that she did not say "no," that she did not say anything to communicate resistance, and, specifically, that she did not pull away or resist. Further, we found no evidence, express or implied, that victim did not resist out of fear of injury or harm to herself; that she considered that any resistance would be futile; that Vandevere threatened further force; that any violent behavior preceded the incident; or that her fear overcame her ability to resist. Neither was Vandevere in a position of authority, domination or control over the victim in any real sense. Although Vandevere had asked victim to model some clothes for him, he was not her employer or other authority figure. Finally, our only indication of possible duress is the fact that Defendant and victim were in a locked hotel room together, but there is no indication that Defendant was trying to imprison or threaten her.
Without such evidence, we cannot say that the there was sufficient physical force to overcome reasonable resistance to satisfy the forcible compulsion element necessary for a conviction of sexual abuse under § 566.100, RSMo 2000. Reversal is required.
The judgment is reversed and defendant ordered discharged.
Garrison, P.J., and Rahmeyer, J., concur.