                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1219
                                    ___________

Mark Kilmartin,                          *
                                         *
             Appellant,                  *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
David Dormire, Superintendent;           * Western District of Missouri.
Jeremiah (Jay) Nixon, Attorney           *
General of the State of Missouri,        *
                                         *
             Appellees.                  *
                                    ___________

                              Submitted: September 22, 1998
                                  Filed: November 9, 1998
                                   ___________

Before RICHARD S. ARNOLD, WOLLMAN, and KELLY,1 Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Mark Kilmartin appeals from the district court’s2 denial of his 28 U.S.C. § 2254
petition. We affirm.


      1
       The Honorable John D. Kelly died on October 21, 1998. This opinion is
consistent with his vote at the panel’s conference following oral argument on
September 22, 1998.
      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
                                             I.

      Kilmartin was convicted on a charge of first-degree sodomy following his sexual
contact with an eleven-year-old boy and was sentenced to life imprisonment. The
Missouri Court of Appeals affirmed the conviction. See State v. Kilmartin, 904 S.W.2d
370, 378 (Mo. Ct. App. 1995).

        On appeal from the denial of federal habeas relief, Kilmartin contends that the
trial court erred by failing to instruct the jury that age and marital status were necessary
elements of statutory sodomy and by instructing the jury that forcible compulsion was
a necessary element. He also contends that the trial court erred when it questioned
prospective jurors outside his presence.

                                            II.

       Kilmartin alleges as error a discrepancy between the information and one of the
instructions submitted to the jury. The information charged Kilmartin with having
“deviate sexual intercourse with [M.J.S.], to whom [Kilmartin] was not married and
who was less than fourteen years old, without the consent of [M.J.S.].” Kilmartin, 904
S.W.2d at 372. This charge was based upon statutory sodomy, which occurs when “[a]
person . . . has deviate sexual intercourse with another person to whom he is not
married who is less than fourteen years old.” Kilmartin, 904 S.W.2d at 372 (citing Mo.
Rev. Stat. § 566.060.3). The jury was instructed as follows:

       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

                                            -2-
      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, 904 S.W.2d at 372. This instruction did not encompass the elements of the
charge of statutory sodomy set forth in the information in that it failed to include the
elements of age and marital status and in that it included the elements of consent and
forcible compulsion, which are unnecessary in a charge of statutory sodomy.

       The discrepancy between the charge and the jury instruction was not contested
by Kilmartin in his state court appeal. The Missouri Court of Appeals reviewed the
discrepancy sua sponte for plain error, however, and found no manifest injustice. See
Kilmartin, 904 S.W.2d at 374-75.

       The State argues that plain error review at the state appellate level does not
remedy the procedural default caused by Kilmartin’s failure to challenge the
discrepancy in his initial appeal. The district court agreed and refused to review the
issue. There is a “decisional split within our Circuit on whether plain-error review by
a state appellate court waives a procedural default by a habeas petitioner, allowing
collateral review by this Court.” Mack v. Caspari, 92 F.3d 637, 641 n.6 (8th Cir.
1996), cert. denied, 117 S. Ct. 1117 (1997). Given the divergence within this circuit,
we are free to choose which line of cases to follow. See Hornbuckle v. Groose, 106
F.3d 253, 257 (8th. Cir.), cert. denied, 118 S. Ct. 189 (1997). We choose to review for
plain error, i.e., to determine whether manifest injustice resulted from the faulty
instruction.




                                          -3-
        Although the instruction did not require a finding that M.J.S. was under the age
of fourteen or that Kilmartin and M.J.S. were not married, these elements of the offense
were undisputed. The jury specifically found that Kilmartin had initiated sexual contact
with M.J.S., and Kilmartin does not claim (nor could he) that he and M.J.S. were
lawfully married. Neither does he dispute that M.J.S. was eleven years old at the time
of the incident. Thus, we agree with the Missouri Court of Appeals that the omission
of the elements of age and marital status from the challenged instruction did not result
in manifest injustice.

       Likewise, the erroneous inclusion of the elements of forcible compulsion and
lack of consent, which imposed upon the state a higher burden to gain a conviction than
that required by Missouri law, did not result in manifest injustice. See Kilmartin, 904
S.W.2d at 375.

                                           III.

       Kilmartin’s second claim of error is that the trial court erred by failing to allow
his presence at a bench conference with several potential jurors. During the voir dire,
the trial judge asked potential jurors if any of them would like to speak with him
privately. Six venirepersons accepted this invitation. Kilmartin’s counsel was present
during each venireperson’s conversation with the judge.

        Although a criminal defendant has a constitutional right to attend and to
participate in his trial, United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam),
this right was not violated in this instance. See id. at 525-28 (no constitutional error
where judge held an in camera conference with a juror in defense counsel’s presence
but in defendant’s absence). Kilmartin was not excluded from the courtroom, and his
counsel was present at each bench discussion. Kilmartin voiced neither a desire to be
present nor an objection to his absence from the bench conference. Moreover,
Kilmartin does not contend that any of the six venirepersons were excluded from the

                                           -4-
jury panel for improper reasons. Accordingly, we find no violation of Kilmartin’s right
to participate in his trial.

      The judgment is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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