Beck v. State

• Decision Date: 16 November 2021
• Docket Number: WD 84004
• Parties: Derry BECK II, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

637 S.W.3d 545

Derry BECK II, Appellant,

v.STATE of Missouri, Respondent.

WD 84004

Missouri Court of Appeals, Western District.

OPINION FILED: November 16, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied December 21, 2021

Application for Transfer Denied February 8, 2022

Elizabeth Unger Carlyle, Kansas City, MO, for appellant.

Gregory L. Barnes, Jefferson City, MO, for respondent.

Before Division Three: Lisa White Hardwick, Presiding Judge, Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge

Gary D. Witt, Judge

Derry Beck II ("Beck") appeals the judgment of the Circuit Court of Jackson County, Missouri ("motion court"), denying, after an evidentiary hearing, his motion for post-conviction relief pursuant to Rule 29.15. On appeal, Beck argues that the motion court erred in: (1) failing to find his trial counsel ("Counsel") ineffective for not interviewing and calling Michael and Marcina Collins as fact witnesses at his trial; (2) failing to find Counsel ineffective for not calling Dr. Ann Duncan-Hively as an expert witness; (3) failing to find Counsel ineffective for not objecting to the improper opinion testimony of Dr. Emily Killough based on the finding on direct appeal that the admission of this testimony was not plain error; (4) failing to find Counsel ineffective for failing to properly impeach the testimony of A.O. ("Victim")¹ with prior inconsistent statements; (5) failing to find Counsel ineffective for presenting Victim's forensic interview; (6) failing to find Counsel ineffective for failing to allow Beck to review his police interview because if Beck had reviewed the video he could have pointed out inconsistencies in the detective's trial testimony; (7) failing to find Counsel ineffective for failing to further question or challenge Juror;² (8) failing to find Counsel ineffective for failing to seek a mistrial or curative instruction after Venireperson's prejudicial statement; (9) failing to consider his amended 29.15 motion timely in violation of his rights to due process and equal protection of the law; and (10) failing to consider the argument in his untimely amended 29.15 motion that Counsel was ineffective in failing to investigate and call Dawn Crosley as a witness at his trial. Finding no error we affirm the judgment of the motion court.

Factual and Procedural Background³

Beck and Victim's mother separated from each other by the time Victim was born in November of 2000. The separation was not amicable, and Victim did not have any meaningful relationship with Beck, her father, during her early years, nor was she given his last name on her birth certificate as were her two older siblings. Beck, while he was in Missouri, lived with his mother, Mary Beck, in Blue Springs. Beck was absent from Missouri at various times for extended periods during Victim's childhood, including when he spent time in Mexico, when he attended scuba dive school in Florida, when he worked as a diver on oil rigs in the Gulf off of Louisiana, and when he spent time as a diver or performed diving-related activities in Guam.

At some point, Victim's older siblings went to live with Beck at his mother's house. During that time period, Victim would come visit her siblings and Beck. These visits varied in frequency, and some visits were overnight. When Victim stayed overnight at Beck's mother's house, she did not have a dedicated bedroom but would sleep either in a guest bedroom, in her brother's bedroom, or in her sister's bedroom on a pallet on the floor.

When Victim was approximately five or six years old, she was in a guest bedroom at Beck's mother's house, and Beck was looking at pictures of women on a computer. Beck told Victim to come to him and he pulled down her pants and placed his penis in her anus. He then placed his penis in Victim's mouth and told her to "suck it like a lollipop." He told Victim, "This will be our little secret." Beck put his penis in Victim's anus on several other occasions when she was at Beck's mother's house, and placed his penis in Victim's mouth more times than she could count. When Victim was older, in approximately fifth grade, Beck tried on two separate occasions to put his penis in her vagina, although she fought him and he was unable to rape her. During one of those two occasions, Beck put his mouth on Victim's vagina. Victim believes that Beck sexually abused her for the last time when she was approximately twelve or thirteen years old and in the sixth grade. After Beck had stopped abusing Victim, he asked her to go out to dinner with him for her birthday. Victim's sister encouraged her to go, and Victim went because she did not want to explain to everyone why she refused. During that dinner, Beck apologized to Victim for molesting her and asked her to forgive him.

Victim later disclosed the abuse to her cousin, to whom Victim was close. Victim asked the cousin not to tell anyone about the abuse, but the cousin told a trusted teacher at school and then a school counselor. After it was reported, the Children's Division informed Victim's mother about the abuse. Victim then disclosed the abuse to her mother and her older sister, who subsequently moved out of Beck's mother's house and moved back in with Victim and her mother. Victim's mother filed a police report and Beck was arrested and was charged with multiple counts for his abuse of Victim.

Victim participated in a videotaped forensic interview at the Child Protection Center, during which she detailed the abuse. Victim also was examined at Children's Mercy Hospital, and she was tested for sexually transmitted diseases

. Although the results of her physical exam were normal, the doctor, who was specially trained in child sexual abuse, diagnosed Victim with child sexual abuse, and Victim underwent several therapy sessions at Children's Mercy Hospital.

After a jury trial, Beck was convicted of three counts of first-degree statutory sodomy and one count of first-degree child molestation. The jury found that Beck anally sodomized Victim with his penis, placed his penis in Victim's mouth, placed his mouth on Victim's vagina, and touched Victim's vagina with his penis. The first three acts occurred when Victim was less than twelve years old, and the last act occurred when Victim was less than fourteen years old. Beck was sentenced by the trial court, and received concurrent terms of twenty years in prison for each count of statutory sodomy and fifteen years for child molestation.

On direct appeal, this Court affirmed his conviction for one count of statutory sodomy for placing his mouth on Victim's vagina, but reversed the convictions for two counts of statutory sodomy and the one count of first-degree child molestation as being violative of the principles set forth in State v. Celis-Garcia , 344 S.W.3d 150, 154 (Mo. banc 2011) pertaining to jury unanimity.⁴ State v. Beck , 557 S.W.3d 408 (Mo. App. W.D. 2018). This Court's mandate affirming the conviction and sentence for the one surviving count was issued on October 31, 2018. Beck retained private counsel who filed a postconviction motion pursuant to Rule 29.15 on January 24, 2019. On January 28, 2019, the motion court purported to grant Beck ninety days to amend his post-conviction motion. On April 9, 2019, retained counsel filed a motion for an extension of time for an additional thirty days to file the amended motion, which the motion court granted. On May 24, 2019, Beck's retained counsel filed an amended motion. On August 20, 2019, the State responded to Beck's amended motion, asserting that the amended motion was not timely.

On December 18-19, 2019, the motion court held an evidentiary hearing at which multiple witnesses testified. On January 31, 2020, by agreement with the State, Beck filed the depositions of Michael Collins, Marcina Collins, and Dawn Foster Crosley, and several exhibits to supplement the evidentiary record developed at the hearing. On June 29, 2020, the motion court issued findings of fact, conclusions of law, and a judgment denying Beck relief. On August 31, 2020, the motion court denied Beck's motion to amend the judgment. This appeal follows.

Standard of Review

We review the denial of a Rule 29.15 motion for post-conviction relief "to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous." Watson v. State , 520 S.W.3d 423, 428 (Mo. banc 2017) ; Rule 29.15(k). "A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Id. (quoting Swallow v. State , 398 S.W.3d 1, 3 (Mo. banc 2013) ). "The motion court's findings of fact and conclusions of law are presumed to be correct." Hays v. State , 360 S.W.3d 304, 309 (Mo. App. W.D. 2012) (quoting Edwards v. State , 200 S.W.3d 500, 509 (Mo. banc 2006) ).

Analysis

Two of Beck's points on appeal (Point IX and Point X) involve the motion court's finding that Beck's amended motion was untimely and the motion court's refusal to consider any allegations in the amended motion that were not included in the original motion. For ease of analysis, we will address Beck's Points IX and X out of order. We will first address Beck's claim on appeal (Point IX), that the motion court erred in refusing to consider his amended motion timely filed.

Timeliness of Amended Motion; Point IX

Beck claims that the motion court erred in finding that his amended 29.15 motion was untimely because the motion court improperly granted an additional thirty-day extension of time in which to amend the motion and because his retained counsel effectively abandoned him by failing to file an amended motion within the time allowed by the Rule. Beck's arguments were expressly rejected by our Supreme Court in Gittemeier v. State , 527 S.W.3d 64 (Mo. banc 2017), holding; 1) the time limits of rule 29.15 are mandatory and the motion court does not have the authority to extend them and 2) the abandonment doctrine is solely...