RAYMOND SPENCER HOOD, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent ( 2020 )

RAYMOND SPENCER HOOD, )
)
Movant-Appellant, )
)
v. ) No. SD36370
)
STATE OF MISSOURI, ) Filed: September 24, 2020
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY
Honorable James K. Journey
AFFIRMED
Raymond Spencer Hood (“Movant”) appeals the motion court’s denial of his Rule
29.151 amended motion for post-conviction relief (“the motion”) after an evidentiary
hearing. In four points on appeal, Movant claims the motion court clearly erred in denying
relief because trial counsel was ineffective for failing to object on relevance grounds to the
trial court’s admission of testimony from Movant’s family members about Movant’s sexual
misconduct previously perpetrated against them (points 1 – 3) and for failing to advise
Movant of the adverse effect that waiving a jury trial would have on the standard of review
on appeal applicable to the alleged erroneous admission of that propensity evidence (Point
4). Finding no clear error, we affirm.
1
All rule references are to Missouri Court Rules (2019).
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Background
Prior to trial, Movant waived his right to a jury trial and proceeded to a bench trial.
After that trial, the trial court found Defendant guilty of five counts of statutory rape in the
first degree, one count of statutory rape in the second degree, and one count of statutory
sodomy in the second degree.2 The trial court also found that Movant qualified for
sentencing as a predatory sexual offender based upon the testimony Movant now claims
should not have been adduced at his bench trial.3
All of the charges against Movant stemmed from allegations of sexual abuse by
Movant’s then-minor daughter (“Victim”). At trial, Victim testified about seven different
instances in which Movant forced her to have sexual intercourse with him. The dates ranged
from August 2005, when Victim was 9 years old, to June 2010, when Victim was 15.
Victim recounted instances occurring inside their family home and on the family farm in
which Movant forcibly removed Victim’s clothes and forced her to have vaginal intercourse
and, on one occasion, anal intercourse, with Movant.
Pursuant to article I, section 18(c) of the Missouri Constitution, the State also
adduced evidence from three of Movant’s family members about Movant’s prior sexual
misconduct to prove Movant’s propensity to commit the crimes charged and that Movant
was a predatory sexual offender. Movant’s mother (“Mother”) testified that in 1988, when
Movant was 14 or 15 years old, he twice attempted to rape her. Mother testified that on both
2
See sections 566.032, RSMo 2000 (counts 1 and 2); 566.032, RSMo Cum. Supp. 2007 (counts 3 and 4);
566.032, RSMo Cum. Supp. 2008 (count 5); 566.064 RSMo 2000 (count 6); and 566.034, RSMo 2000 (count
7).
3
Section 558.018.5(2), RSMo 2000, defines a “predatory sexual offender” as a person who has previously
committed forcible rape, statutory rape in the first degree, forcible sodomy, statutory sodomy in the first
degree, or has attempted to commit any of those crimes, as well as anyone who has previously committed child
molestation in the first degree when classified as a B felony or sexual abuse when classified as a B felony. See
also section 558.018.4, RSMo 2000.
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occasions, Movant pushed her on the bed, removed her clothes, and attempted to have
intercourse with her.
Movant’s younger sister (“Sister”) testified that Movant had sexual intercourse with
her multiple times, including at the family farm, during the time she was in kindergarten
through second grade. Movant’s older brother (“Brother”) testified that Movant tried to
have non-consensual anal intercourse with him at their family home when Movant was 14
and Brother was 16.
The trial court found Movant guilty as charged and sentenced him to life
imprisonment on each of the five counts of first-degree statutory rape and seven years’
imprisonment on the statutory sodomy charge and the statutory-rape-in-the-second-degree
charge. We affirmed Movant’s convictions on direct appeal in State v. Hood, 521 S.W.3d
680, 682-83 (Mo. App. S.D. 2017).
On August 8, 2017, Movant filed his pro se Motion to Vacate, Set Aside or Correct
the Judgment or Sentence. Counsel was appointed on August 9, 2017, and an amended
motion was timely filed on November 7, 2017. The motion alleged, in pertinent part, that
trial counsel was ineffective for failing to object on relevance grounds to the propensity
evidence offered by Mother, Sister, and Brother, and for providing inadequate advice to
Movant regarding his waiver of a jury trial in that trial counsel did not “discuss the
limitations when appealing a bench trial as compared to appealing a jury trial.”
Movant, Movant’s wife, and trial counsel all testified at the evidentiary hearing on
the motion. After the motion was denied, this appeal timely followed.
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Standard of Review & Governing Law
We review a motion court’s judgment denying post-conviction relief to determine
whether the findings of fact and conclusions of law are clearly erroneous. Ludemann v.
State, 601 S.W.3d 577, 579 (Mo. App. S.D. 2020); Rule 29.15(k).
To prevail on a claim of ineffective assistance of counsel, the movant must prove by
a preponderance of the evidence that counsel: (1) failed to exercise the level of skill and
diligence that reasonable, competent counsel would exercise; and (2) the movant was
prejudiced by that failure. McIntosh v. State, 413 S.W.3d 320, 324 (Mo. banc 2013) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Analysis
Points 1 – 3
Movant’s first three points claim the motion court clearly erred in denying the
motion because trial counsel was ineffective for failing to object on relevance grounds to the
propensity evidence offered by Mother, Sister, and Brother. We disagree. Because each of
these points addresses the same type of testimony provided by all three witnesses, we
address them together.
As earlier noted, pursuant to article I, section 18(c) of the Missouri Constitution,
Mother, Sister, and Brother all offered evidence of Movant’s prior sexual misconduct for
purposes of proving Movant’s propensity to commit the charged sexual crimes he
perpetrated against Victim. Prior to trial, Movant sought to exclude such evidence on the
basis that, inter alia, it was “more prejudicial than probative[.]” The trial court denied
Movant’s request to exclude the evidence, stating,
I believe, under the constitutional amendment, the State is entitled to do that.
As much as I personally might find that to be somewhat dangerous in the
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bigger scheme of things, that’s what it says. Now, it’s somewhat -- to me,
it’s academic in a bench trial a little bit because, being charged as a predatory
sexual offender, I think the State can get into that same thing anyway, with or
without the constitutional amendment, at least before the Court. And since
we’re here without a jury, then it takes away some of the problem in trying to
decide what should be allowed in evidence in chief and what should be
allowed only in chambers out of the hearing of the jury itself.
Because of that, I don’t find the prejudice to be extreme and, under
the constitutional amendment, of course, there is the safeguard that, if the
prejudicial effect outweighs the probative value, then the Court has a
discretion to keep it from the fact finders. Again, we don’t have a jury, so I
think it’s somewhat academic.
The trial court then granted Movant a continuing objection to the testimony.
Failure to object to evidence is not sufficient, in and of itself, to
constitute ineffective assistance of counsel. West v. State, 244 S.W.3d 198,
200 (Mo.App. E.D.2008). In order to prevail on a claim of ineffective
assistance of counsel for failing to object to evidence, Movant must show
that: (1) the objection would have been meritorious, and (2) the failure to
object resulted in substantial deprivation of his right to a fair trial. Id.
“Movant also bears the burden of proving the failure to object was not
strategic and was prejudicial.” Id.
Hays v. State, 360 S.W.3d 304, 312 (Mo. App. W.D. 2012).
Movant does not dispute that the evidence he challenges was admissible as proof of
the State’s allegation that Movant qualified as a predatory sexual offender. See also Hood,
521 S.W.3d at 683 n.2 (stating, “Although portions of the evidence challenged by [the
defendant] in this appeal were utilized by the trial court in its determination that [the
defendant] is a predatory sexual offender, [the defendant] does not challenge the use of the
evidence in that respect”).
As the State points out – and Movant does not attempt to refute – there is no
evidence in the record that the trial court relied on the complained-of evidence in finding
Movant guilty of the charged offenses. Absent such a showing of reliance, Movant cannot
meet his burden of proving that the outcome of his case would have been different absent
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that challenged evidence. Mullenix-St. Charles Props., L.P. v. City of St. Charles, 983
S.W.2d 550, 557 (Mo. App. E.D. 1998) (“erroneously admitted evidence in a court-tried
case is rarely, if ever, a cause for reversal and then only when it appears from the record that
the court relied on the inadmissible evidence in arriving at its findings”).
Points 1, 2 and 3 are denied.
Point 4
In a tacit acknowledgement of the presumption that a trial judge will not consider
evidence for an improper purpose, Point 4 claims the motion court clearly erred in denying
the motion because trial counsel was ineffective for failing to advise Movant of “the effect
of waiving a jury trial on [Movant]’s ability to appeal the admission of propensity
evidence[.]” Movant does not identify what advice he believes he should have received
until the fourth-to-last page of his brief, in which he claims that “there [would be] almost no
probability of reversal, because of the extreme deference as to prejudice that appellate courts
employ after a bench trial[,]” citing Hood, 521 S.W.3d at 683-84. We need not dither about
whether such deference may rightly be characterized as “extreme” because Movant’s claim
fails for a more fundamental reason that is subject to absolute deference on appeal.
The relevant finding by the trial court is:
Movant testified that he would have insisted on trying his case to a
jury if he had been advised of potential differences in appellate review
standards. This Court does not find that testimony credible. Movant was
advised that trying his case, under the circumstances, to a jury would be
problematic. Given the nature of the charges, it would have been difficult for
Movant to prevail in a jury trial if he did not testify. Movant was advised that
if he did testify, a jury would have been informed of his felony convictions,
which included involuntary manslaughter and stealing. Nothing in Movant’s
testimony or other evidence causes this Court to believe that he would have
actually elected to increase his chances of a conviction at trial in order to
potentially benefit in some unknown manner from a possible difference in
appellate review standards. In the absence of credible evidence to support
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Movant’s claim that he would have insisted on a jury trial, Movant’s . . .
claims . . . fail and are DENIED [(emphasis added)].
“This Court defers to the motion court’s factual findings and credibility
determinations.” Rowland v. State, No. SD 36154, 2020 WL 3248367, at *5 (Mo. App.
S.D. June 16, 2020). The motion court did not believe Movant’s testimony, and we must
defer to that finding. Id.
Movant’s fourth point is also denied, and the motion court’s denial of post-
conviction relief is affirmed.
DON E. BURRELL, J. – OPINION AUTHOR
GARY W. LYNCH, J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS
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