Mallow v. State
| Decision Date | 19 August 2014 |
| Docket Number | No. SC 93878.,SC 93878. |
| Court | Missouri Supreme Court |
| Parties | Louis Edward MALLOW, Appellant, v. STATE of Missouri, Respondent. |
Laura G. Martin, Public Defender's Office, Kansas City, for Mallow.
Evan J. Buchheim, Attorney General's Office, Jefferson City, for the State.
Louis Mallow (hereinafter, “Movant”) appealed from the trial court's judgment entered after a jury found him guilty of one count of child molestation, section 566.067, RSMo 2000.1 The trial court sentenced Movant to a term of fourteen years' imprisonment. The Southern District affirmed his direct appeal in an unpublished opinion. State v. Mallow, SD27859. After an evidentiary hearing, the motion court overruled Movant's motion for post-conviction relief pursuant to Rule 29.15. Movant now appeals from the motion court's judgment, raising two points on appeal. The judgment denying post-conviction relief is affirmed.
Viewed in the light most favorable to the verdict, the evidence presented was: C.B.K. (hereinafter, “Victim”) was born in 1992. Victim suffers from Turner's disease, which affects her learning ability, causes problems with her speech, sight and hearing, and prevents her from having children. Victim functions three to four years behind her peers. Victim lives with her mother.
Movant and his two children lived across the street from Victim. Victim and Movant's children played together and had occasional sleepovers at both houses.
In July 2004, a hotline report was made, claiming Movant sexually abused Victim. Victim was interviewed at a child advocacy center in July and November 2004. Movant was informed of Victim's allegations and interviewed. Movant stated he had not known Victim to lie, but he denied any sexual contact with her. Movant was then arrested. He again denied Victim's allegations but stated he was willing to accept the penalty. Based upon the information obtained from these interviews, Movant was charged with two counts of first-degree child molestation, section 566.067, and one count of first-degree sodomy, section 566.062.
Movant was tried by a jury. Victim's trial testimony clearly indicated there was sexual contact with Movant, but her testimony varied from her previous interviews. At trial, Victim testified regarding several incidents with Movant. First, Victim stated that Movant touched her “private parts” while she was wearing clothes. Victim indicated the location where Movant touched her, referring to the area as her “girl part” and “vagina.” Victim testified Movant touched her there only one time. Victim also testified that she did not know whether Movant touched her anywhere else. Victim stated she knew that Movant's private part was hard, but she did not know how she knew. Victim stated she did not touch Movant.
Next, Victim testified that Movant “tried to make me do the Coyote Ugly dance” with her clothes on. Victim described this as “stripper dancing.” Victim also testified that Movant wanted her to sleep with him. Victim described this as “two persons in a bed.” Victim stated she did not do the dance or sleep with Movant.
Finally, Victim testified Movant tried to make her get into the bathtub with him while he was wearing only underwear. Victim could not remember if she did this or not.
During the jury instruction conference, Movant's trial counsel indicated he had some question whether the definition of “sexual contact” was included in one of the instructions, but that he would defer to the State's reliance on the “Notes on Use.” Movant's trial counsel did not object to the instructions. The jury was instructed accordingly. The verdict directing instructions for the child molestation counts were instructions 5 and 6 (hereinafter, collectively, “the molestation verdict directors”). Instruction No. 5 stated:
Instruction No. 6 stated:
Instruction No. 8 stated, inter alia, that Movant was
During the state's closing argument, it urged the jury to find Movant guilty if it believed Victim was a victim. The state explained that if the jury thought Movant touched Victim's genitals twice, it could convict him of both child molestation charges. The state acknowledged that at trial Victim testified Movant only touched her inappropriately once, but that her pretrial interviews were inconsistent with her trial testimony because in the interviews she stated Movant touched her eleven times.
In response, Movant's trial counsel noted the multiple inconsistencies of Victim's statements regarding events that occurred. Movant's trial counsel argued that Victim could not remember two instances of the alleged inappropriate sexual contact occurring and was not even positive Movant touched her genitals. Movant's trial counsel pointed out multiple inconsistencies in Victim's trial testimony. Further, Movant's trial counsel suggested that the pretrial interviewers, who elicited so many instances of alleged abuse, were leading Victim in their interviews.
The jury returned its verdict, finding Movant guilty of one count of child molestation but acquitting him of the other count of child molestation and the statutory sodomy charge. The trial court sentenced Movant to fourteen years' imprisonment.
Movant appealed, claiming Victim's trial testimony was so contradictory that there was insufficient evidence to convict him. The Southern District affirmed Movant's conviction on appeal.
Movant then timely filed a pro se motion for post-conviction relief. Movant's motion set forth ten allegations of error, including that the molestation verdict directors “were unconstitutionally vague so that they subjected [Movant] to double jeopardy and resulted in Movant being convicted without now being able to determine which of the two sexual touching incidents testified about by [Victim] was the crime that the jury found Movant guilty of committing and which of the two sexual touching incidents the jury acquitted [Movant] of committing.”2 Movant's appointed post-conviction counsel filed an amended post-conviction motion and incorporated this particular claim by reference by attaching Movant's pro se motion to the amended motion.
The motion court held an evidentiary hearing on Movant's allegations. At the evidentiary hearing, Movant's appellate counsel testified he did not recall noticing anything wrong with the molestation verdict directors. Had he noticed something, he stated, he would have made a note of it. Movant's appellate counsel also stated that the only reason for not raising an objection to an instruction would have been “if [he] didn't think it had any merit.” Movant's appellate counsel testified that he looked for errors raised in the motion for new trial and for any unpreserved errors.
Movant's trial counsel also testified at the evidentiary hearing. He stated that the errors he identified were included in the motion for new trial. However, Movant's trial counsel was not asked any questions regarding the molestation verdict directors.
Following the evidentiary hearing, the motion court issued its judgment, denying Movant post-conviction relief. The motion court found, inter alia, neither Movant's trial counsel nor his appellate counsel were ineffective for failing to raise an issue regarding the molestation verdict directors. Movant appeals. This Court granted transfer after opinion by the court of appeals and, therefore, has jurisdiction under article V, section 10, of the Missouri Constitution.
This Court will affirm the motion court's judgment unless its findings and conclusions are clearly erroneous. Rule 29.15(k) ; Johnson v. State, 333 S.W.3d 459, 463 (Mo. banc 2011). The motion court's judgment is clearly erroneous only if this Court is left with a definite and firm impression that a mistake has been made. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (quoting Goodwin v. State, 191 S.W.3d 20, 26 (Mo. banc 2006) ). The motion court's findings are presumed correct. McLaughlin v. State, 378 S.W.3d 328, 336–37 (Mo. banc 2012). Additionally, a movant bears the burden of proving the asserted “claims for relief by a preponderance of the evidence.” Rule 29.15(f).
To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test in order to prove his or her claims. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, ...
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