dissenting.
I join the affirmance of the denial of defendant’s Rule 29.15 motion and respectfully dissent from that portion of the opinion which reverses the felonious restraint conviction. I will not restate the evidence, however, I find the following facts significant.
Defendant was thirty-three years old at the time of the crime. He testified on direct examination that he had been previously convicted of first-degree robbery and sentenced to twelve years’ imprisonment.1 Victim, on the other hand, was a thirteen-year-old girl that witnesses described as the “little girl”. When defendant approached victim on her sister’s front porch, victim lied to him about her name and told him she was eleven years old instead of thirteen.
Victim testified that when she informed defendant she was going to go home, he grabbed her arm and “forced [her] ... out of the gate”. Defendant then trailed victim down the street, and, after refusing defendant’s invitation to go to his house and call her father, defendant “grabbed [her] arm again” and forced her toward the lot across from her sister’s house. Victim testified she was: “Crying. I started to cry because I started getting scared.”
As defendant “pulled” her through the lot’s gate and “pushed” her into the vacant building, victim testified she was “yelling and screaming and stuff”. Once inside, defendant “forced” a glass pipe “with some black stuff on the end of it” into victim’s mouth and she “got choked off of it”. Defendant pulled off his pants and then told victim to remove her clothes. When she didn’t comply he told her again “in a mean way”. Again, she said she was afraid and accordingly complied with his order. Defendant told victim, “I want you to suck my thing”. When victim stated she did not know how, defendant accused her of lying and “forced it in [her] mouth”. When Jo Williams saw defendant and victim on the corner of Kennerly and Hamilton she thought initially that “[victim] had got in trouble and her father or her brother or somebody had came and got her....” She testified, “I told Nicole [Thompson, her car-mate] ... ‘She looks really young and she is crying’.... [A]s they went past us it looked like he was saying something to her and she was still crying but he had her real tight by the arm_ I looked in the rearview mirror when they got behind me and he was going up into a area that’s vacant, that I know is vacant because I know the area. And by that time he was pulling her and she was pulling back and she said, ‘No’ ”.
Nicole Thompson testified that Jo Williams backed her car up, and Thompson called to victim, “Hey, little girl. Hey, little girl. Are you okay? Are you okay?” But defendant and victim kept walking. Thompson concluded victim had not heard her. The women then witnessed defendant push victim into the abandoned garage.
Timothy McGee testified that after receiving the telephone call he went outside and met Nicole who was “terrified”. When he confronted him, defendant was clad only in a fishnet shirt. Defendant told him, “Ain’t nobody raping nobody”. When victim exited the vacant building, “[s]he was crying like she was terrified. She was — she was very upset, shaking”.
I find the relevant facts of the instant case very similar to those in the Southern District case of State v. Warren, 779 S.W.2d 751 (Mo.App.1989). There, the defendant was also charged with sodomy and felonious restraint and, as here, argued on appeal that the evidence was insufficient to establish he had exposed the victim to a substantial risk of serious physical injury. The court summarized the evidence thus:
Around 1:00 a.m., the victim, age 18, 5' 2" tall, weighing 100 lbs, was walking to a friend’s home after having an argument with his parents. As the victim approached the apartment house in which the defendant lived, he encountered the defendant. The defendant talked to the victim who kept walking. The defendant was 41 years old, bigger and stronger than the victim. As they passed the apartment house, the defendant grabbed the victim and pulled his arms up behind his back. *318He told the victim not to speak or escape. The defendant pulled the victim into the apartment elevator. He forced the victim into his apartment and to disrobe. The defendant proceeded to commit anal sodomy upon the victim. He kept the victim in the apartment three to four hours. The victim testified he was scared the defendant was going to kill him. The victim decided defendant would have to kill him. He put on his clothes and left the apartment. At about 6:00 a.m. the victim approached the security guard, crying, and told the guard he had been raped. Police were summoned and took the victim to the station.
Id. at 752.
In affirming, Judge Maus, speaking for the court, stated, “[w]hether or not unlawful restraint exposes a victim to a risk of serious physical injury is to be determined from all of the circumstances.” Id. at 758 (emphasis added). “It is appropriate to place emphasis upon the ‘propensity and the ability of the defendant to inflict such injury." Id. (emphasis added). The court noted that while the evidence of defendant’s size and strength should have been more specific:
There was evidence he was bigger and stronger than the victim. His apparent strength was enough to cause the victim to be afraid the defendant would kill him. By twisting the victim’s arms behind his back, the defendant forced the victim to defendant’s apartment. The defendant said he was unemployed because he was suffering from a nervous disorder and depression. Before encountering the victim, the defendant had been shooting pool in a tavern. When he reached the apartment, he took some medication for depression. The victim submitted because of the arm twisting and fear. Had he resisted, the evidence candes a reasonable inference the defendant would have accomplished his purpose by farther violence. The jury was entitled to conclude that under those circumstances the defendant’s determination to engage in his perverted attack upon the victim subjected the victim to a substantial risk of serious physical injury.
Id. (emphasis added).
I am unable to significantly distinguish the relevant facts of Warren from those of the instant case. Here, we similarly do not have any direct height or weight evidence. However, we know victim was a thirteen-year-old child and defendant a thirty-three-year old felon. He was obviously bigger and stronger than victim. He forced victim into the vacant budding, forced a pipe into her mouth, and forced his penis into her mouth. Victim was observed, in all accounts but defendant’s, as “crying”, “scared”, “terrified”. Had she resisted or attempted to escape, the evidence carries a reasonable inference the defendant would have accomplished his purpose by further violence. In my opinion, the jury was entitled to conclude that, under the circumstances here, defendant’s determination to engage in his perverted attacks upon victim subjected her to a substantial risk of serious physical injury. I would therefore affirm the conviction of felonious restraint.
. Defendant testified that he pled guilty to the robbery in December of 1992 and that he was placed on probation in April of 1993. The offenses here occurred on July 3, 1993.