Hoeber v. State

• Citation: 488 S.W.3d 648
• Decision Date: 03 May 2016
• Docket Number: No. SC 95079,SC 95079
• Parties: Edward L. Hoeber, Appellant, v. State of Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

488 S.W.3d 648

Edward L. Hoeber, Appellant,
v.
State of Missouri, Respondent.

No. SC 95079

Supreme Court of Missouri, en banc .

Opinion issued May 3, 2016

Hoeber was represented by Laura G. Martin of the public defender's office in Kansas City, (816) 889–7699.

The state was represented by Evan J. Buccheim of the attorney general's office in Jefferson City, (573) 751–3321.

Patricia Breckenridge, Chief Justice

Edward L. Hoeber was convicted of two counts of statutory sodomy in the first degree, section 566.062.¹ Mr. Hoeber subsequently filed a Rule 29.15 motion for postconviction relief alleging that his trial counsel was ineffective for failing to object to verdict directors that violated his constitutional right to a unanimous jury verdict and for failing to hire an expert to testify at the sentencing hearing. The motion court concluded that trial counsel's failure to object to the verdict directors did not prejudice Mr. Hoeber because no risk existed that the jurors were misled about which incident of abuse applied to each particular count of statutory sodomy. The motion court further concluded that trial counsel was not ineffective for failing to hire an expert to testify at Mr. Hoeber's sentencing hearing. The motion court overruled Mr. Hoeber's motion for post-conviction relief.

The two verdict directors submitted in Mr. Hoeber's case both failed to identify a specific act or incident of abuse despite testimony at trial regarding multiple incidents of Mr. Hoeber inappropriately touching S.M., the victim. Given the evidence of multiple acts or incidents of abuse introduced at trial and the state's emphasis on such evidence in its closing argument, the non-specific verdict directors created a risk that the jurors did not unanimously agree as to the acts for which they were finding Mr. Hoeber guilty. A reasonable probability exists, therefore, that both verdict directors in this case misled or misdirected the jury in such a way that affected the verdicts. Accordingly, trial

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counsel's failure to object to the erroneous verdict directors prejudiced Mr. Hoeber.

Moreover, a reasonably competent attorney would have objected to, or requested the modification of, the two insufficiently specific verdict directors to protect Mr. Hoeber's right to a unanimous jury verdict. At the time of Mr. Hoeber's trial, the MAI notes on use addressed the significance of modifying verdict directors in multiple acts cases, and it was well-established Missouri law that the verdict must be definite and certain as to the crime of which the accused is found guilty. The fact that State v. Celis–Garcia, 344 S.W.3d 150 (Mo. banc 2011), had yet to be decided at the time of Mr. Hoeber's trial does not excuse trial counsel's failure to object to the two erroneous verdict directors. Consequently, because no reasonable trial strategy existed for trial counsel's failure to object to the non-specific verdict directors, trial counsel's performance fell outside the wide range of professional, competent assistance.

Accordingly, Mr. Hoeber established that his trial counsel was ineffective for failing to object to two insufficiently specific verdict directors, and the motion court clearly erred in overruling Mr. Hoeber's Rule 29.15 motion for post-conviction relief. This Court reverses the motion court's judgment and remands this case.

Factual and Procedural Background

S.M. was born in 2003. In 2004, S.M.'s mother began dating Mr. Hoeber, who moved in with the family soon thereafter. Mr. Hoeber and S.M's mother ended their romantic relationship in 2005. Nevertheless, Mr. Hoeber continued to live with the family intermittently through 2007.

In July 2007, S.M., her mother, and Mr. Hoeber were living in a one-bedroom apartment in St. Joseph. S.M.'s mother had increasing health problems that caused her to spend the majority of the day sitting in a recliner in the living room. Because of her health problems, she was unable to care for S.M. As a result, Mr. Hoeber prepared S.M.'s meals, bathed and dressed S.M., and helped S.M. use the bathroom. While Mr. Hoeber was taking care of S.M., she was diagnosed with a vaginal infection. Because S.M.'s mother was unable to apply the medication, Mr. Hoeber applied it to S.M.'s genitals using his finger.

By September 2007, Mr. Hoeber was no longer living at the apartment, and S.M. was placed in foster care. While in foster care, S.M. told her foster mother that Mr. Hoeber had touched her. After the disclosure, S.M. began seeing a child therapist. S.M. told the therapist that Mr. Hoeber had touched her “private area.”

By January 2008, S.M. had returned to living with her mother. One night, S.M. began talking in her sleep saying “Stop it! Stop it!” When S.M.'s mother woke her, S.M. said “Eddie hurt me.” When questioned further, S.M. said that Mr. Hoeber had touched her “pee-pee” and demonstrated to her mother how he had touched her genitals. S.M.'s mother called the police.

Mr. Hoeber was charged with two counts of first degree statutory sodomy.² When questioned, Mr. Hoeber originally denied touching S.M. inappropriately and requested that a lie detector test be administered. Detective Scott Coates of the Buchanan County sheriff's office prepared Mr. Hoeber for the lie detector test. While doing so, Detective Coates asked Mr. Hoeber if there was anything Mr.

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Hoeber was not telling him and that, if there were, Mr. Hoeber should tell him before the test. Mr. Hoeber eventually admitted to touching S.M. in the bathroom on two separate occasions. Detective Coates transcribed Mr. Hoeber's admission in a statement that Mr. Hoeber then signed.

In 2009, the case proceeded to trial. S.M. testified that Mr. Hoeber touched her private area and her butt with his hand more than one time. When asked what room she was in when the touching occurred, S.M. stated it was in the kitchen. S.M. went on to testify that no touching occurred in the bedroom, the bathroom, or the living room.

S.M.'s mother also testified at trial. She explained that S.M. had told her that the touching occurred more than one time. She further testified that S.M. told her the touching occurred in the kitchen and the bedroom.

The state offered additional testimony from S.M.'s therapist. The therapist testified that she first saw S.M. in September 2007. During that visit, S.M. told the therapist that Mr. Hoeber had touched her, then immediately stated “No, he doesn't.” At a later visit, S.M. told the therapist that she “needed to tell [the therapist] a secret.” S.M. then disclosed that Mr. Hoeber had touched her private area with his hand while she was in the bedroom. In subsequent visits, S.M. disclosed that Mr. Hoeber had touched her private area with his hand on more than one occasion. In describing the touchings, S.M. told the therapist they had occurred in the bedroom, the kitchen, the bathroom, and the living room.

Detective Coates then read Mr. Hoeber's statement into evidence. The statement provided:

I, Edward Hoeber, state that I dated [S.M.'s mother] for about one year. I lived with [S.M.'s mother] in 2004, this is December, to September 2005. Then I would say I have lived with [S.M.'s mother] off and on since December of 2004. I came to jail in August of 2007.³

During the time I lived with [S.M's mother], she would have me take care of her daughter, [S.M.]. I would give her a bath and sometimes wipe after she got done in the bathroom. [S.M.] was 4. She will be 5 next month.

About a month before I got arrested, we were living at 619 North 9th. Around that time, there were two times I touched [S.M.] inappropriately. There were two times where [S.M.] was in the bathroom and had gotten off the toilet with her pants down.

Before she would pull her pants up, I would rub her clitoris with my fingers. She would kind of laugh. I would rub her for about two minutes or so. [S.M.'s mother] would be sitting in the front room. I never told her anything about this. As far as I know, [S.M.'s mother] never knew. I only did it the two times. I am sorry for what I did. I really need help.

Testifying on his own behalf, Mr. Hoeber denied touching S.M. inappropriately and explained that his confession was coerced by Detective Coates.

At the close of evidence, the trial court instructed the jury on two counts of first degree statutory sodomy. Mr. Hoeber's trial counsel did not object to either verdict director submitted to the jury. The jury found Mr. Hoeber guilty on both counts, and the trial court sentenced Mr. Hoeber, as a prior offender, to 40 years on each count to run consecutively. Trial counsel presented no witnesses on Mr.

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Hoeber's behalf at the sentencing hearing. Mr. Hoeber's conviction was affirmed on direct appeal. State v. Hoeber, 341 S.W.3d 195 (Mo.App.2011).

On March 24, 2010, Mr. Hoeber filed his pro se motion for post-conviction relief pursuant to Rule 29.15. In his amended Rule 29.15 motion, Mr. Hoeber claimed that his trial counsel was ineffective for failing to object to the verdict directors, which he alleged violated his constitutional right to a unanimous jury verdict. Mr. Hoeber further claimed that his trial counsel provided ineffective assistance at the...