Kristen Schallon, Movant/Appellant v. State of Missouri , 435 S.W.3d 120 ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
KRISTEN SCHALLON, ) No. ED99733
)
Movant/Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Honorable Michael Mullen
STATE OF MISSOURI, )
)
Respondent. ) Filed: June 30, 2014
The movant, Kristen Schallon, appeals the denial of his Rule 29.15 motion for
post-conviction relief following an evidentiary hearing. A jury had convicted the movant
of committing 45 sexual offenses against his stepdaughter when she was between the
ages of eight and 16. These convictions included 15 counts of second-degree statutory
sodomy committed between August 1996 and August 1999. 1 The Circuit Court of the
City of St. Louis had entered judgment against the movant, and sentenced him to
concurrent terms of imprisonment totaling 30 years, namely 19 sentences of 30 years
each for the counts of forcible sodomy, forcible rape, and first-degree statutory sodomy;
16 sentences of seven years each for the counts of second-degree statutory sodomy and
attempted second-degree statutory sodomy; and ten sentences of one year each for the
counts of first-degree sexual misconduct.
1
The State charged count 19 as occurring between August 7, 1996 and August 6, 1999, the same period
cited for all the other counts of second-degree statutory sodomy. The verdict director for count 19,
however, stated this incident occurred between August 7, 1995 and August 6, 1999.
This post-conviction appeal involves 12 of the 15 counts of second-degree
statutory sodomy, for which the court sentenced the movant to concurrent terms of
imprisonment of seven years on each count. The movant asserts that appellate counsel
was ineffective for failing to challenge the sufficiency of the evidence to support his
conviction on these 12 counts. We conclude that appellate counsel was not ineffective.
First, viewing the evidence and inferences therefrom in the light most favorable to the
verdict, the evidence was sufficient to support the movant’s conviction of each of the 12
counts of second-degree statutory sodomy at issue. Second, because post-conviction
counsel denied appellate counsel access to her complete file and notes on the movant’s
case, forcing appellate counsel to speculate about her reasoning, decisions, and strategy
on appeal, her testimony was robbed of its probative force. As a result, the movant failed
to rebut the presumption that appellate counsel performed effectively and that her
decisions resulted from reasonable strategy. We affirm the motion court’s judgment.
At trial, the victim described numerous sexual offenses the movant committed
against her on a daily basis over the course of eight years. She stated that she did not
recall a day when she and the movant were in the same house that abuse did not occur.
She explained that the movant abused her in the house, in the garage, in the car behind
the garage, in the backyard, in the park, in the car on the street, and in the car in a parking
lot. The victim testified to numerous incidents when the movant touched her vagina with
his fingers. She stated that the abuse grew progressively worse, and described how the
movant would enter her bedroom at night. The victim recalled that “I would wake up,
and his fingers were already inside of my vagina . . . .” Sergeant Mickey Owens of the
St. Louis Metropolitan Police Department interviewed the movant upon his arrest.
2
Sergeant Owens testified that the movant admitted that he put his finger inside the
victim’s vagina, and that this occurred inside the house, both in the living room and the
victim’s bedroom, in his car parked on the street, and in his car in the garage. Sergeant
Owens testified that the movant admitted abuse occurred daily from the time the victim
was about eight years old until she ran away at the age of 16 to get away from him. On
cross-examination, Sergeant Owens confirmed that the movant told him the abuse
occurred in the park, in the car, and in the house.
A jury convicted the movant of 45 sexual offenses against his stepdaughter,
namely 15 counts of forcible sodomy in violation of section 566.060 RSMo. (Supp. 1990,
1994, Supp. 1998); three counts of forcible rape in violation of section 566.030 RSMo.
(Supp. 1990, Supp. 1993); one count of first-degree statutory rape in violation of section
566.032 RSMo. (1994) ; 2 15 counts of second-degree statutory sodomy in violation of
section 566.064; one count of attempted second-degree statutory sodomy in violation of
section 564.011 and 566.064; and ten counts of first-degree sexual misconduct in
violation of section 566.090.
On direct appeal, this Court vacated one of the movant’s convictions for forcible
sodomy, and remanded to the trial court to vacate one of two convictions arising from the
same act of sexual misconduct and to correct the movant’s sentence on the count of
attempted second-degree statutory sodomy. State v. Schallon, 341 S.W.3d 795 (Mo.
App. E.D. 2011). This Court affirmed in all other respects. The movant did not
challenge on direct appeal any of the 12 counts involved in the instant appeal.
Following adjudication of his direct appeal, the movant sought post-conviction
relief on five bases. He asserted that appellate counsel was ineffective for failing to
2
All statutory references are to RSMo. (1994) except as otherwise indicated.
3
challenge on direct appeal the sufficiency of the evidence on 12 counts of second-degree
statutory sodomy. He claimed that trial counsel was ineffective for failing to object to an
incorrect definition of “deviate sexual intercourse” in the verdict-directing instructions
for all 15 counts of second-degree statutory sodomy, for failing to request a lesser-
included offense instruction for one of the counts of second-degree statutory sodomy, and
for failing to move to dismiss 22 of the various charges based on the statute of
limitations. The movant also claimed that the written sentence and judgment contained
multiple clerical errors.
The motion court conducted an evidentiary hearing at which appellate counsel
testified. Appellate counsel summarized her actions in preparing the brief, including
compiling the statutes in effect at the time of each offense. She stated, however, that
“without having my file here, I don’t know if I can fully answer the question [about
preparing the brief] but those [things] are what I remember.” She observed that the
movant’s brief took her longer to prepare than five average appeals combined. After
refreshing her recollection with the brief, appellate counsel was able to summarize the
points raised on direct appeal. She recalled, after reviewing this Court’s opinion, that the
State conceded reversible error on three of her four points, and that this Court granted
relief on those issues.
Post-conviction counsel allowed appellate counsel to review the file briefly before
the hearing, but denied her the opportunity to have all of her notes before her while she
testified. Appellate counsel stated that she reviewed every count, took notes on each, and
made some determination about whether to include them in the direct appeal. However,
4
she could not remember precisely what that determination was with regard to the 12
counts at issue here. She stated three times that she could only speculate.
In an offer of proof, post-conviction counsel stated that she gave appellate counsel
the opportunity to review the file more than two months earlier, and again immediately
before the hearing. Post-conviction counsel acknowledged that she brought to the
hearing only some of appellate counsel’s notes.
In its order, the motion court observed that post-conviction counsel would not
allow appellate counsel to consult her file from the appeal, including her notes made
during preparation of the brief, and that appellate counsel “was not able to recall and
provide probative answers regarding this claim.” The motion court declined to find
appellate counsel ineffective when post-conviction counsel “would not permit her to
provide proper answers regarding her handling of the appeal.” The motion court also
noted that the evidence at trial would allow the jury to infer that the movant’s conduct in
connection with these offenses involved more than touching and that penetration
occurred.
The motion court granted relief on the movant’s claim that trial counsel was
ineffective for failing to object to the incorrect definition of “deviate sexual intercourse”
in the verdict-directing instructions for all 15 counts of second-degree statutory sodomy.
The motion court vacated those counts and returned them for a new trial rather than
entering a judgment of acquittal. The motion court reasoned that the instructional error
constituted a procedural error, and “it is apparent that a submissible case likely can be
made, or was made, as to these counts.” 3 The court stated that it would correct the
3
The motion court’s award of a new trial does not affect the appealability of the issue presented here,
which is that appellate counsel was ineffective for failing to challenge the sufficiency of the evidence.
5
clerical errors in the written sentence and judgment in a separate order. The motion court
rejected the movant’s remaining two claims of ineffective assistance of trial counsel.
The movant appeals only the motion court’s denial of relief for his claim of
ineffective assistance of appellate counsel. Our review of a motion court’s denial of a
Rule 29.15 motion for post-conviction relief is limited to a determination of whether the
findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Johnson v.
State, 388 S.W.3d 159, 162-63 (Mo. banc 2012); Davidson v. State, 308 S.W.3d 311, 316
(Mo. App. E.D. 2010). A motion court’s findings and conclusions are clearly erroneous
only if, after a full review of the record, this Court is left with a definite and firm
impression that a mistake has been made. Johnson, 388 S.W.3d at 163; Davidson, 308
S.W.3d at 316.
The movant alleges ineffective assistance of appellate counsel. To prevail, the
movant must establish that counsel failed to raise a claim of error that was so obvious that
a competent and effective attorney would have recognized and asserted it. Tisius v. State,
183 S.W.3d 207, 215 (Mo. banc 2006). The alleged error must have been sufficiently
serious so as to create a reasonable probability that, had it been raised, the outcome of the
appeal would have been different. Id. The movant has the burden to prove a claim for
post-conviction relief by a preponderance of the evidence. Rule 29.15(i); Holman v.
State, 88 S.W.3d 105, 109 (Mo. App. E.D. 2002). “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the [movant] must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. at
Merely because a post-conviction movant has received some relief does not mean he cannot adjudicate
whether he should have received further relief.
6
110 (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). Appellate counsel
has no obligation to present every issue asserted in the motion for new trial when she
makes a strategic decision to cull some arguments in favor of others. Id.
In the 12 counts at issue here, the State charged the movant with committing
second-degree statutory sodomy by touching the victim’s vagina with his hand between
August 7, 1996 and August 6, 1999, when the victim was between the ages of 14 and 16.
Section 566.064.1 at that time provided that “[a] person commits the crime of statutory
sodomy in the second degree if being twenty-one years of age or older, he has deviate
sexual intercourse with another person who is less than seventeen years of age.” During
this time, “deviate sexual intercourse” meant “any act involving the genitals of one
person and the mouth, tongue, or anus of another person or a sexual act involving the
penetration, however slight, of the male or female sex organ or the anus by a finger,
instrument or object done for the purpose of arousing or gratifying the sexual desire of
any person.” Section 566.010(1).
The movant argues that the statute in effect at the time of the charged offenses did
not define “deviate sexual intercourse” to include hand-to-genital contact that did not
result in penetration. Because “deviate sexual intercourse” is an essential element of
second-degree statutory sodomy, contact that at the time in question did not meet the
statutory definition of “deviate sexual intercourse” could not constitute second-degree
statutory sodomy. The movant contends that the evidence was insufficient to support his
conviction of 12 of the counts of second-degree statutory sodomy. Appellate counsel did
not raise this issue on direct appeal, and the movant asserts that appellate counsel was
thus ineffective.
7
When faced with a challenge to the sufficiency of the evidence, we accept as true
all evidence favorable to the State, including all favorable inferences drawn from the
evidence, and we disregard all evidence and inferences to the contrary. State v. Grim,
854 S.W.2d 403, 405 (Mo. banc 1993). We limit our review to determining whether
there is sufficient evidence from which a reasonable juror might have found the
defendant guilty beyond a reasonable doubt. Id. The motion court ruled only “that a
submissible case likely can be made, or was made, as to these counts.” This ruling does
not adequately address the question of submissibility. We have reviewed the evidence to
determine whether sufficient evidence exists to support the movant’s convictions for the
12 counts of second-degree statutory sodomy at issue here.
The victim testified to numerous incidents when the movant touched her vagina
with his fingers. She described awakening at night to find the movant’s fingers already in
her vagina. Sergeant Owens testified that the movant admitted putting his finger inside
the victim’s vagina, and abusing the victim on a daily basis from the time she was eight
years old until she left home at age 16. The movant told Sergeant Owens that abuse
occurred inside the house, both in the living room and the victim’s bedroom, in his car
parked on the street, in his car in the garage, and in the park, locations that corresponded
to the victim’s account of specific incidents.
Viewing the evidence and inferences therefrom in the light most favorable to the
verdict, we hold that the evidence was sufficient to support the movant’s conviction of
each of the 12 counts of second-degree statutory sodomy at issue. Consequently,
appellate counsel could not be ineffective for failing to challenge the sufficiency of the
evidence on these counts on direct appeal.
8
Furthermore, the motion court conducted an evidentiary hearing at which
appellate counsel testified. Appellate counsel characterized her review of the file shortly
before the hearing as “hasty at best.” She explained that she had asked to have all of her
notes when she testified, and she repeated that request while on the stand. She stated that
post-conviction counsel had not warned her that she would not have all her notes
available at the evidentiary hearing. In an offer of proof, post-conviction counsel
acknowledged that she brought to the hearing only some of appellate counsel’s notes.
Appellate counsel could not remember the details of the case with any precision.
When asked why she did not challenge the sufficiency of the evidence on the 12 counts at
issue, appellate counsel stated:
I remember specifically, and my notes reflect—looking at each and every count.
. . . So I took notes on the issue and I did not raise them [sic]. I must have made
some determination, but, no, I do not recall what that determination was exactly . .
..
She stated three times that she was speculating about her decisions and reasoning with
regard to the direct appeal, and she stated that she could not answer some questions
without having access to her notes. Appellate counsel explained that she had numerous
discussions with the movant and his significant other about which issues to address on
appeal. But without her notes, appellate counsel stated that she could not testify whether
they discussed the specific issue involved here.
We again observe that the movant was convicted of a total of 45 counts involving
six different sexual offenses committed over an eight-year period, during which time
some of the relevant statutes changed multiple times. Appellate counsel testified that,
because of the complexity of the case, the movant’s appeal took her longer to prepare
than five average appeals combined. This Court issued its opinion on the direct appeal 16
9