Becker v. State

• Decision Date: 02 September 2008
• Docket Number: No. ED 90426.,ED 90426.
• Citation: 260 S.W.3d 905
• Parties: Michael J. BECKER, Movant/Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

260 S.W.3d 905

Michael J. BECKER, Movant/Appellant, v. STATE of Missouri, Respondent.

No. ED 90426.

Missouri Court of Appeals, Eastern District, Division Two.

September 2, 2008.

Mark A. Grothoff, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.

LAWRENCE E. MOONEY, Presiding Judge.

The movant appeals the denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. Following his conviction by a jury in the Circuit Court of Washington County, the trial court entered judgment against the movant for first-degree statutory sodomy, in violation of section 566.062 RSMo. (2000),¹ sentencing him to life in prison. On appeal, the movant claims that the motion court clearly erred because his trial counsel was ineffective in failing to request a lesser-included jury instruction for first-degree child molestation. Although we conclude that first-degree child molestation constitutes a lesser-included offense of first-degree statutory sodomy in this case, the movant cannot show that any basis existed for his acquittal of the greater offense and his conviction of the lesser. Therefore, he was not entitled to a jury instruction for first-degree child molestation, and we will not deem trial counsel ineffective for failing to request such an instruction. We affirm the motion court's judgment.

The movant was charged with one count of first-degree statutory sodomy. At trial, the victim explained that the movant began dating her mother when the victim was seven or eight years old and moved into the victim's home shortly thereafter. The victim testified to an incident in late 2002, when she was ten years old, which constituted the basis for the charge of first-degree statutory sodomy. She awoke to find the movant lying behind her on the bed and the movant's hand inside her shorts and underwear. She stated that the movant rubbed her vagina and confirmed that he penetrated her vagina. The victim also described several other occasions when she awoke to the feeling of tugging on her shorts, and each time she found the movant standing over her.

The victim reported the incidents to the police, who then questioned the movant. The movant did not testify at trial, but the investigating police officers testified that the movant told them, after waiving his Miranda rights, that the 2002 incident was an accident and that he did not know how it happened. According to the officers, the movant claimed that he was on medication and may have thought he was lying in bed with his girlfriend. The State also introduced tapes containing the movant's statements to police. The jury convicted the movant of one count of first-degree statutory sodomy, and the court entered judgment and sentenced the movant to life in prison. This Court affirmed the movant's conviction on direct appeal. State v. Becker, 201 S.W.3d 56 (Mo.App. E.D.2006).

The movant then filed a motion for post-conviction relief, claiming that his trial counsel was ineffective in failing to request a jury instruction for the lesser-included offense of first-degree child molestation. The motion court denied post-conviction relief without an evidentiary hearing. The court concluded that the movant's asserted defense that he did not knowingly sodomize the victim was inconsistent with an instruction for first-degree child molestation. Thus, the motion court ruled, trial counsel's failure to request a jury instruction for a lesser-included offense was a matter of trial strategy and did not constitute ineffective assistance of counsel. We fail to follow the motion court's reasoning that the movant's asserted defense that he did not knowingly sodomize the victim was inconsistent with an instruction for first-degree child molestation. The defense that any touching was accidental applies equally to first-degree statutory sodomy and first-degree child molestation because each offense posits an underage victim who is incapable of consent and that the touching be done for the purpose of arousing or gratifying any person's sexual desire. Section 566.010(1) and Section 566.010(3) RSMo. (Supp.2007). However, regardless of the motion court's findings and conclusions in denying relief, we must affirm the judgment if sustainable upon other grounds. Bode v. State, 203 S.W.3d 262, 267 (Mo.App. W.D.2006); see also Howard v. State, 59 S.W.3d 586, 590 n. 3 (Mo.App. E.D.2001).

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); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005); Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App. E.D.2001). 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. Williams, 168 S.W.3d at 439; Helmig, 42 S.W.3d at 666. To receive an evidentiary hearing on a Rule 29.15 motion, a movant must meet three requirements: (1) the motion must allege facts, not conclusions, which warrant relief; (2) the facts alleged raise matters not refuted by the record; and (3) the facts alleged establish prejudice to the movant. Williams, 168 S.W.3d at 439.

The movant alleges ineffective assistance of counsel. To show ineffective assistance of counsel, a movant must demonstrate: (1) that counsel's performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) that counsel's deficient performance prejudiced the defense by showing a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Williams, 168 S.W.3d at 439 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel's performance will not be deemed ineffective unless a movant satisfies both elements of the Strickland test. Helmig, 42 S.W.3d at 667.

The movant claims that trial counsel was ineffective in failing to request an instruction for first-degree child molestation as a lesser-included offense of first-degree statutory sodomy. He argues that because there was no evidence of penetration of the victim's vagina, he was entitled to such an instruction and was prejudiced by trial counsel's failure to request it. In order for us to deem trial counsel ineffective, we must first make two distinct determinations. First, we must determine whether first-degree child molestation constitutes a lesser-included offense of first-degree statutory sodomy. Then, if we so find, we must determine whether an evidentiary basis existed to acquit the movant of the greater offense and convict him of the lesser.

An offense qualifies as a lesser-included offense when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" Section 556.046.1(1) RSMo. (2000 & Supp.2007). The statutory-elements test determines whether an offense is a lesser-included offense. State v. Van Doren, 657 S.W.2d 708, 715 (Mo.App. E.D.1983).

The statement of the general rule necessarily implies that the lesser crime must be included in the higher crime with which the accused is specifically charged, and that the averment of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser, to sustain a conviction of the latter offense.

If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.

State v. Smith, 592 S.W.2d 165, 166 (Mo. banc 1979) quoting State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957) (emphasis added). In other words, "[i]dentification of less[er-]included offenses requires that the greater of the two offenses encompass all of the legal and factual elements of the lesser crime." Van Doren, 657 S.W.2d at 715. "An offense is a lesser[-]included offense if it is impossible to commit the greater without necessarily committing the lesser." State v. Derenzy, 89 S.W.3d 472, 474 (Mo. banc 2002) (4-3 decision).

Section 556.046 tracks the language of the Model Penal Code, which adopts the majority rule. State v. Hibler, 5 S.W.3d 147, 150 (Mo. banc 1999).

The majority rule ... is that a lesser crime is an included offense when it consists of legal elements which must always be present for the greater crime to have been committed in the manner in which the greater crime is charged in the accusatory pleading.

Id. (quoting Jerrold H. Barnett, The Lesser-Included Offense Doctrine: A Present Day Analysis for Practitioners, 5 CONN. L.REV. 255, 291 (1971) (emphasis added), cited in MODEL PENAL CODE AND COMMENTARIES, sec. 1.07, at 130 & n. 109 (1985)). "The lesser[-]included offense doctrine in criminal law generally allows the trier of fact to convict a defendant of an offense that is less serious than the offense with which he was charged in the accusatory pleading." Id. (quoting Christen R. Blair, Constitutional Limitations on the Lesser Included Offense Doctrine, 21 AM.CRIM. L.REV. 445 (1984) (emphasis added)). The analysis should focus on the statutory elements of each offense rather than on the evidence adduced at trial. State v. McTush, 827 S.W.2d 184, 188 (Mo. banc 1992).

It has been posited that differing "approaches" to the statutory-elements test may exist. Smith, 592 S.W.2d at 166. In considering whether trespass was a lesser-included offense of burglary, the Smith court questioned whether it should consider the legal and factual elements of the burglary statute or the legal and factual elements of the burglary charge....