Hannon v. State

• Decision Date: 15 March 2016
• Docket Number: No. ED 102443,ED 102443
• Citation: 491 S.W.3d 234
• Parties: Nathan Hannon, Respondent, v. State of Missouri, Appellant.
• Court: Missouri Court of Appeals

491 S.W.3d 234

Nathan Hannon, Respondent,

v.State of Missouri, Appellant.

No. ED 102443

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

FILED: March 15, 2016

Motion for Rehearing and/or Transfer to Supreme Court Denied April 26, 2016

Application for Transfer Denied June 28, 2016

Gwenda Renee Robinson, 1010 Market St., Suite 1100, St. Louis, MO 63101, for appellant.

Chris Koster, Karen L. Kramer, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

A jury convicted Nathan Hannon(“Hannon”) on two counts of first-degree statutory sodomy for allegedly molesting Victim.After a direct appeal, Hannon filed a Rule 29.15¹motion for post-conviction relief.The motion court granted the motion and entered judgment granting Hannon a new trial.The State appeals the motion court's judgment and argues that the motion court clearly erred in granting Hannon's motion for post-conviction relief for three reasons.First, the State argues that Hannon's trial counsel(“Trial Counsel”) was not ineffective for failing to object to hearsay testimony at trial.Second, the State argues that Trial Counsel was not ineffective for failing to investigate Victim's school attendance records, which contradicted Victim's testimony.Third, the State argues that the motion court improperly exceeded its scope of review under Rule 29.15 by considering issues not raised in Hannon's post-conviction motion.Because the motion court did not clearly err in finding Trial Counsel ineffective for failing to obtain Victim's school attendance records, we affirm the motion court's judgment.

Factual and Procedural HistoryI.Factual Background and Hannon's Original Trial

In February of 2009, Victim disclosed to his grandmother (“Grandmother”) that he was molested by Hannon some years before.Grandmother contacted a counselor who was already working with Victim.The counselor contacted the police, and Victim was interviewed by a Children's Advocacy Center (“CAC”) employee.During the interview, Victim said he was about five years old when he was molested.Victim then specified that the molestation occurred one day while he was at home sick from school.Victim also remembered the molestation occurred the day before his mother(“Mother”) suffered a drug overdose, which was the day Grandmother took custody of Victim and Victim's sister(“Sister”).Mother's overdose was firmly established as occurring on October 4, 2005.

The State filed charges against Hannon, alleging that the molestation occurred “on or about October 3, 2005.”The probable cause statement attached to the charges contained a statement from police Detective Dana Pickett.The statement read, “I was informed by [Victim], who is 11 years old, that the day before his mom overdosed, the subject Nathan Hannon came over to his home.[Victim] said that Hannon placed his hand on [Victim's] penis and later placed Hannon's penis in [Victim's] butt.”

Hannon's jury trial began on October 18, 2010, Victim testified that the molestation occurred on a day he stayed home sick from school.Victim also stated that Sister went to school and Mother left him home alone that day.Victim described how Hannon came to his home looking for Mother, and stated that Hannon eventually molested Victim in Victim's bedroom.After the molestation, Victim testified that he cried on the floor until Sister came home from school.Victim reiterated that the molestation occurred the day before Mother overdosed and Grandmother took custody of the children.

Sister, Mother, and Grandmother also testified at trial.Sister confirmed Victim's story that Sister went to school and Victim stayed home sick the day of the alleged molestation.Sister described coming home from school to find Victim crying.Sister also testified that she saw Hannon leaving the home as she arrived.Victim informed Sister that Hannon “touched him.”Sister further corroborated Victim's claim that the molestation occurred the day before Mother overdosed and Grandmother took custody of the children.Mother testified that she suffered a heroin overdose in October of 2005.Mother admitted leaving her children unattended for periods of time and stated that Hannon visited her home every day.Mother also testified that, on the day she overdosed—October 4, 2005—Victim had been complaining to Mother that his “butt hurt.”Grandmother testified that she took custody of the children on October 4, 2005.Grandmother remembered the date because it was also her sister's birthday.Grandmother testified that she did not learn of the molestation until 2009, when Victim and Sister returned from a teen education program at their church.Victim then told Grandmother that he was molested by Hannon “when I was with my mom, the day before you got us.”

The jury convicted Hannon on two counts of first-degree statutory sodomy.

II.Post–Trial Procedural History

The trial court held a sentencing hearing on December 2, 2010.At the hearing, the trial court overruled Hannon's motion for new trial and sentenced Hannon to concurrent twelve-year prison sentences.The trial court then questioned Hannon about the effectiveness of Trial Counsel.Hannon raised several complaints about Trial Counsel.One of Hannon's complaints was: “I wanted him to check to see if [Victim] was actually in school instead of home sick during the time this supposed incident happened.”The trial court found no probable cause to believe Hannon received ineffective assistance of counsel.After the sentencing hearing, Trial Counsel filed a notice of appeal for Hannon that was three days late.

On March 4, 2011, Daniel Diemer(“Diemer”) entered his appearance as Hannon's new attorney for the case and filed a request to re-open the Rule 29.15 hearing because Hannon wanted to plead additional allegations regarding Trial Counsel's effectiveness.The trial court granted Diemer's request and heard additional testimony from Hannon on May 20, 2011.The trial court found that Trial Counsel had unequivocally stated he would file a notice of appeal, but failed to do so in a timely manner.The trial court found Trial Counsel to be ineffective and set aside the judgment and sentences entered earlier.The trial court resentenced Hannon to the same concurrent twelve-year prison terms and again advised Hannon of his right to file a motion for post-conviction relief pursuant to Rule 29.15.Upon questioning by the trial court, Hannon restated his complaints about Trial Counsel's ineffectiveness.The trial court continued the hearing to allow a response from Trial Counsel regarding Hannon's claims.

On June 10, 2011, the hearing resumed with Trial Counsel present.Trial Counsel denied that Hannon requested Victim's school attendance records.Trial Counsel stated that he contacted the school, and school officials advised him that “[o]ne of the children had no record of having been there that year, or that period, that semester.”Trial Counsel testified that he assessed the situation and decided the records would not exonerate Hannon because Victim was “constantly absent.”Trial Counsel also opined that the records would not aid the defense theory that Hannon could not have molested Victim because Hannon “wasn't anywhere near that home during that time period.”Trial Counsel therefore concluded that Victim's presence at school on October 3, 2005, was “insignificant.”Hannon's post-trial counsel, Diemer, sought to introduce the actual school attendance records into evidence to impeach Trial Counsel's testimony, but the trial court sustained the State's objection to lack of foundation.The trial court found no probable cause for ineffective assistance of counsel and entered its judgment.Hannon appealed to this Court.

III.Hannon's Direct Appeal

This Court affirmed Hannon's convictions in State v. Hannon,398 S.W.3d 108(Mo.App.E.D.2013).In conjunction with his appeal, Hannon also filed a motion seeking to remand his case to the trial court for consideration of newly discovered evidence.This Court separately addressed Hannon's motion for remand as part of our opinion.Id. at 113.In his motion for remand, Hannon asserted that the school attendance records showed Victim was present at school on October 3 and 4, 2005. Id.Hannon maintained that the attendance records “could lead to a retrial or perhaps even an acquittal” because the records contradicted the State's assertion at trial that Victim was molested while at home sick from school on October 3, 2005.Id.

This Court noted that it generally will not remand a case before the conclusion of an appeal if the newly discovered evidence is not sufficient to grant a new trial.Id.Hannon conceded that the deadline to file a motion for new trial under Rule 29.11 had expired.Id.However, this Court noted that “an appellate court has the inherent power to prevent a miscarriage of justice or manifest injustice by remanding a case to the trial court for consideration of newly discovered evidence presented for the first time on appeal.”Id.(quotingState v. Terry,304 S.W.3d 105, 109(Mo. banc 2010) ).This power is within the discretion of an appellate court.Id.

A motion to remand based on newly discovered evidence will be granted when a movant shows that (1) the newly discovered evidence came to the movant's knowledge after the end of trial; (2)the movant's lack of knowledge was not because of a lack of due diligence on his part; (3) the “evidence is so material that it is likely to produce a differen[t] result at a new trial”; and (4) the evidence is neither cumulative or merely of an impeaching nature.Id.We held that Hannon satisfied the first two elements, but not the final two.Id. at 113–14.

Regarding the third element required to support a remand, this Court noted that evidence is considered to “likely produce a different result at a new trial if it is credible and reasonably sufficient to raise a substantial doubt in the mind of a reasonable person as to the...