Hood v. State

• Decision Date: 24 September 2020
• Docket Number: No. SD 36370,SD 36370
• Citation: 611 S.W.3d 865
• Parties: Raymond Spencer HOOD, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

611 S.W.3d 865

Raymond Spencer HOOD, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 36370

Missouri Court of Appeals, Southern District, Division Two.

Filed: September 24, 2020

Motion for Rehearing and/or Application for Transfer to Supreme Court Denied October 14, 2020

Application for Transfer Denied December 22, 2020

DAMIEN SEPHER BHAKTI DE LOYOLA, Kansas City, Mo, for Appellant.

DANIEL N. MCPHERSON, Jefferson City, Mo, for Respondent.

DON E. BURRELL, J.

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.

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 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.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 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...