Th e Honorable John D. Kelly died on October 21, 1998. This opinion i s 1 con sistent with his vote at the panel’s conference following oral argument o n September 22, 1998. T he Honorable Ortrie D. Smith, United States District Judge for the Wester n 2 District of Missouri. 

## 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, Circuit Judges. 1

___________ WOLLMAN, Circuit Judge. Mark Kilmartin appeals from the district c ourt’s denial of his 28 U.S.C. § 2254 2 petition. We affirm.-2- I. Kilmartin was convicted on a charge of first-degree sodo my following his sexual cont actwith an eleven-year-old boy and was sentenced to life imprisonment. Th e Missouri Court of Appeals affirmed the conviction. See State v. Kilmarti n , 904 S.W.2d 370, 378 (Mo. Ct. App. 1995). Onappeal from the denial of federal habeas relief, Kilmartin contends that the trial court erred by failing to instruct the jury that age an d marital status were necessary elements of statutory so domy and by instructing the jury that forcible compulsion was a necessary e lement. He also contends that the trial court erred when it questione d prospective jurors outside his presence. II. Kilmartin alleges as error a di screpancy between the information and one of the instructi ons submitted to the jury. The information charged Kilmartin with havin g “deviat e sexual intercourse with [M.J.S.], to whom [Kilmartin] was not married an d who was less than fourteen years old, without the con sent 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 no t married who is less than fourteen years old.” Kilmartin , 904 S.W.2 d at 372 (citing Mo. Rev. Stat. § 566.060.3). The jury was instructed as follows: As to Co unt 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 o f Missouri, [Kilmartin] placed his hand on the penis of [M.J.S.], and Second, that such conduct constituted deviate sexual intercourse, and-3-

Third, that [Kilmartin] did so without the consent of [M.J.S.] by the use of forcible compulsion, and Fo urth, 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. T his instruction did not encompass the elements of the cha rge of statutory sodomy set forth in the information in that it failed to include th e 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 discrepancybetween the charge and the jury instruction was not contested by Kilmart in in his state court appeal. The Missouri Court of Appeals reviewed th e 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 no t remedy th e procedural default caused by Kilmartin’s failure to challenge th e dis crepancy in his initial appeal. The district court agreed and refused to review th e issue. There is a “de cisional split within our Circuit on whether plain-error review by astate appellate court waives a procedural default by a habeas petitioner, allowin g collateral rev iew by this Court.” Mack v. Caspari , 92 F.3d 637, 641 n.6 (8th Cir

. 1996), cert. de nied , 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). W e choose to review for plainerror, i.e. , to determine whether manifest injustice resulted from the faulty instruction.-4-

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 init iated sexual contact with M.J.S., and Kilmartin does not claim (nor could he) that he and M.J.S. wer e lawfully married. Neither does he dis pute 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 a

nd marital status from the challenged instruction did not result in manifest injustice. Likewise, the erroneous inclusion of the elements of forcible compulsion an d lack of consent, which imposed upon the state a higher burden to gai n a conviction than that required by Mi ssouri 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 ju dge asked potential jurors if any of them would like to speak with hi m privately. Six venirepersons accepte d this invitation. Kilmartin’s counsel was present during each venireperson’s conversation with the judge. Althoug h a criminal defendant has a constitutional right to attend and t o 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 presen t 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-5-

jury panel for improper reasons. Accordingly, we fin d 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.