dissenting.
Respectfully, I dissent.
The appellant’s first claim of error, and principal complaint, has been that the Commonwealth failed to establish the necessary element of forcible compulsion with respect to the charges of first-degree rape and first-degree sodomy made against him. The premise for this complaint is that no physical force nor threat of physical injury was used to accomplish the acts charged in the indictment. At the time the alleged offenses occurred in 1986, and earlier, KRS 510.010(2) defined “Forcible compulsion” as meaning:
“[Pjhysical force that overcomes earnest resistance or a threat, express or implied, that overcomes earnest resistance by placing a person in fear of immediate death or physical injury to himself or another person or in fear that he or another person will be immediately kidnapped.”
The words “that overcomes earnest resistance” were deleted when the statute was amended in 1990, but they apply here.
With some reservations, I concur in the Majority Opinion that there was enough evidence from which to infer forcible compulsion to submit these charges to the jury. But certainly there was also ample evidence from which to conclude that the victim’s participation, while against her wishes, was not compelled.
My concern in this Opinion dissenting in part is with failure to submit to the jury, as requested, instructions on Sexual Misconduct, KRS 510.140, as lesser included offenses to the charges of committing forcible rape on Tanya on nine occasions, covering acts of sexual intercourse with the victim when she was sixteen years of age. These are Counts Six through Fourteen, for each of which the appellant was convicted of first-degree rape.
The appellant contends that this victim’s own testimony went no further than stating “the force was not physical but emotional.” And, indeed she testified, “he didn’t threaten anything physical, it was emotional, he made us feel like dirt.” The description of the facts in the Majority Opinion, while properly giving the Commonwealth the benefit of every reasonable inference, falls far short of overwhelming proof that physical force, or the threat of physical force of a nature to overcome earnest resistance, accompanied the commission of the acts.
The Majority Opinion states emphatically, in two different places, that “the evidence did not require an instruction on sexual misconduct.” But it provides no explanation why this is so except to state, in backhanded fashion while dealing with the “fact that the trial judge gave lesser-included instructions on Counts Two through Five and Count Fifteen,” that this was done “based on the age of the victim Tanya at the time of the incident and not on any question as to lack of forcible compulsion.” It is not the age of the victim but the evidence pointing to a lack of forcible compulsion that is the issue here.
The statute describing the offense of “Sexual Misconduct,” KRS 510.140, states no age limitations. It simply states:
“A person is guilty of sexual misconduct when he engages in sexual intercourse or deviate sexual intercourse with another person without the latter’s consent.”
*839The obvious difference between this offense, as stated, and Sodomy I or Rape I is that it does not require physical force or threats accompanying the acts sufficient to overcome earnest resistance, only a lack of consent. While it may be so that the jury here could infer from the evidence that the victim here submitted from a threat of physical force so overwhelming as to overcome earnest resistance and sustain conviction for rape, I respectfully suggest that conviction for the lesser offense would also be reasonable based on evidence that, while there was a lack of consent, the act of submission was motivated by general circumstances of emotional and verbal abuse, rather than by physical force or threat of physical force accompanying the act.
In any event, the explanation given in the Majority Opinion for concluding it was proper to give “lesser-included instructions on Counts Two through Five and Count Fifteen ... based on the age of the victim,” but also proper to refuse giving such an instruction on Counts Six through Fourteen, is either inconsistent or incoherent, depending on how one looks at it. In either event, it should not suffice.