King v. State

• Decision Date: 11 January 2022
• Docket Number: WD 84079
• Parties: Christopher Michael KING, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

638 S.W.3d 113

Christopher Michael KING, Appellant,

v.STATE of Missouri, Respondent.

WD 84079

Missouri Court of Appeals, Western District.

OPINION FILED: January 11, 2022

Carol Jansen, Columbia, MO, for appellant.

Evan Joseph Buchheim, Jefferson City, MO, for respondent.

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

Gary D. Witt, Judge

Christopher Michael King ("King") appeals the judgment of the Circuit Court of Harrison County, Missouri ("motion court"), denying, without an evidentiary hearing, his motion for post-conviction relief pursuant to Rule 29.15. On appeal, King claims that the motion court erred in: (1) denying, without an evidentiary hearing, King's claim that his trial counsel was ineffective in failing to request a verdict directing instruction for the lesser-included offense of attempted assault in the second degree, because there is a reasonable probability that the jury would have convicted him on the lesser charge; (2) denying, without an evidentiary hearing, King's claim that his trial counsel was ineffective in failing to object to the court's verdict directing instruction for attempted assault in the first degree under section 562.012; and (3) denying, without an evidentiary hearing, his claim that the sentencing court was under the mistaken impression that King would not have to serve 85 percent of his sentence. We affirm.

Factual and Procedural Background¹

In August 2017, M.T., an adult female, ended a nine-year, off-and-on romantic relationship with King. After ending the relationship, M.T. and her daughter moved from Cedar Rapids, Iowa, where they had been living with King, to her hometown of Cedar Falls, Iowa, approximately an hour away from Cedar Rapids.

A few weeks after their break-up, M.T. saw King's pick-up truck in Cedar Falls while she was dropping her daughter off at school. M.T. confronted King about following her. King agreed to go to a nearby McDonald's restaurant with M.T. so they could talk in a public place. King was upset that their relationship had ended. While at McDonald's, he confronted M.T. about her relationship with another man, who has since become M.T.’s husband ("Husband"). M.T. met Husband in college and had previously been in a romantic relationship with him. While talking to King, she denied she was in an ongoing relationship with Husband. King grabbed M.T.’s phone from her purse and looked through her text messages, confirming that M.T. had renewed her relationship with Husband. King then got into the driver's seat of M.T.’s car to prevent her from leaving. Eventually, King got out of M.T.’s car and exclaimed to her, "You're dead, you're all dead." M.T. was unable to make any calls because her phone password was not being recognized. Later that afternoon, M.T. reported this threat to the Cedar Falls police.

That weekend, M.T. convinced Husband, who lived in Mercer, Missouri, to stay with her in Cedar Falls at her parents’ house, where she had been staying. While Husband regularly spent the weekend with M.T. in Cedar Falls, M.T. wanted him to come up that weekend in particular because of the incident earlier in the week with King. That Sunday, September 24, 2017, M.T. and the family returned home from church to find that several small items, including Husband's keys, had been moved, and a Rada-brand kitchen knife was missing. M.T. was also unable to log into her computer because her password had been changed. King later admitted that he had been in Cedar Falls at the time, and a forensic examination of King's phone revealed photographs taken on September 24 of a calendar on M.T.’s computer and a list of her passwords.

A few days later, on Tuesday, September 26, 2017, Husband returned to Mercer. He spent the night at a neighbor's house directly across the street from his own house because he was uncomfortable staying at his home given the situation with King and the suspicious circumstances at M.T.’s parents’ home. When Husband went to his home to get supplies, accompanied by his neighbor, he observed that items in the room used by M.T.’s daughter appeared to be out of place. Husband set up a camcorder on a tripod at the neighbor's house to record the front door of his house. That night, the camera recorded King unscrewing the front porch light bulb on Husband's house. Husband also spent the following night at his neighbor's house.

On the morning of Thursday, September 28, 2017, Mercer County Deputy Sherriff Jimmy See ("Deputy See") responded to a local park after a silver Toyota Camry associated with King had been spotted in the park's parking lot. The vehicle was subject to a "be on the lookout" or "BOLO" alert. When Deputy See arrived at the park, he found the vehicle covered in heavy dew, but empty of occupants. Because Deputy See did not see anybody, he left the park and went to Husband's home, less than one block away. As he was pulling into Husband's driveway, a neighbor alerted him that the silver Camry was leaving the park. Deputy See initiated a traffic stop based on the BOLO alert and took King into custody. Deputy See observed that King's clothing was wet or saturated on his front side and that his shoes were wet.

In his home, Husband discovered additional items in disarray, a plastic bag on the floor under the bed where M.T.’s daughter slept when she stayed at the house, and a smiling face drawn in the dust on a speaker.

Deputy See found a screwdriver in King's front pocket and observed a brush axe or machete and a black handled knife lying in plain view in the vehicle. At King's request, Deputy See retrieved a Subway bag located in the back seat of the vehicle. Deputy See found that it contained approximately $10,000 cash, three savings bonds, and King's passport. King later admitted that he had purchased the Camry in Cedar Rapids. He claimed that he happened to be in Mercer merely because he was driving through Mercer County on his way back to Iowa after visiting St. Louis.

After Deputy See transported King to jail, he returned to the park to continue his investigation. Accompanied by Missouri State Highway Patrol Trooper Adam McAtee, Deputy See searched the park and surrounding area. The officers followed a path from the park heading toward Husband's house, where Deputy See had earlier seen footprints in the dew, and continued on to a nearby pasture. Approximately one-and-a-half feet inside a fence separating the park and pasture, the officers found a knife stuck into the ground with two zip-ties next to a tree. At trial, M.T. identified the knife as the Rada knife that had been stolen from her parents’ home in Cedar Falls a few days earlier.

While conducting an inventory search of the Camry, police found a newly purchased black apron, a new kitchen towel, a new shower liner, a black-handled knife, a hammer, and an open package of zip ties with two missing that matched the two zip ties found on the ground with the Rada knife. In the trunk of the vehicle, police found a laptop computer and two suitcases containing various items of clothing, a shaving kit, and King's high school diploma. A forensic examination of King's phone, conducted pursuant to a warrant, revealed that he had researched Husband's name, employment, and social media profile, and that he had looked up a map for the City of Mercer on Google Maps.

A second amended felony information charged King with: attempted first-degree assault under sections 565.050² and 562.012; second-degree burglary under section 569.170; and second-degree property damage under section 569.120. The case was tried to a jury on August 20, 2018. The jury was instructed on attempted first-degree assault, burglary in the second degree, the lesser-included offenses of first-degree and second-degree trespass, and property damage.

The jury found King guilty of attempted first-degree assault, and second-degree trespass. The jury acquitted King of the charge of property damage. King's trial counsel did not request a verdict-directing instruction on the lesser-included offense of attempted second-degree assault, arguing to the jury that "the most we got here is that there's basically harassment."

The trial court sentenced King to nine years’ imprisonment on the assault offense and assessed a fine for the offense of trespass. King's convictions were affirmed on direct appeal in an unpublished per curiam order. State v. King , 591 S.W.3d 533 (Mo. App. W.D. 2020). King filed a timely motion for post-conviction relief pursuant to Rule 29.15, which was amended by appointed counsel, and the circuit court denied the amended motion without an evidentiary hearing. This appeal follows.

Standard of Review

Appellate review of a motion court's Rule 29.15 judgment "is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous." Price v. State , 422 S.W.3d 292, 294 (Mo. banc 2014) ; Rule 29.15(k). "Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake has been made." Morrow v. State , 21 S.W.3d 819, 822 (Mo. banc 2000). "A reviewing court must uphold a motion court's judgment if it is sustainable on any ground." Voss v. State , 570 S.W.3d 184, 192 (Mo. App. E.D. 2019).

Analysis

Point I; Lesser-included offense instruction

King's first point on appeal is that the motion court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because his trial counsel was ineffective for failing to request the trial court to submit to the jury a verdict-directing instruction for the offense of attempted assault in the second degree, a lesser-included offense of attempted assault in the first degree. King is entitled to an evidentiary hearing only if: "(1) he pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the...