Marshall v. State

• Docket Number: WD85339
• Decision Date: 07 November 2023
• Parties: LEWIS C. MARSHALL, Appellant, v. STATE OF MISSOURI, Respondent.
• Court: Missouri Court of Appeals

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LEWIS C. MARSHALL, Appellant,
v.
STATE OF MISSOURI, Respondent.

No. WD85339

Court of Appeals of Missouri, Western District, Third Division

November 7, 2023

Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Patrick K. Robb, Judge

Before: Karen King Mitchell, Presiding Judge, and Alok Ahuja and Edward R. Ardini, Jr., Judges

KAREN KING MITCHELL, JUDGE

Lewis Marshall appeals, following an evidentiary hearing, the denial of his Rule 29.15 motion for post-conviction relief. Marshall raises three claims on appeal. He argues that trial counsel was ineffective in (1) failing to object both pre-trial and during trial to the number of propensity witnesses presented under the authority of Article I, § 18(c), of the Missouri Constitution; (2) failing to both seek a motion in limine and object during trial regarding testimony that Marshall's granddaughter said she had "special tickle time" with Marshall; and (3) failing to both seek a motion in limine and

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object during trial to witness testimony as to what they heard from others regarding abuse by Marshall. Finding no error, we affirm.

Background

During Thanksgiving 2016, Victim (Marshall's adult stepson) gathered with other relatives at his mother's house. State v. Marshall, 596 S.W.3d 156, 157 (Mo. App. W.D. 2020). When the group began discussing spending the night there, Victim's niece (and Marshall's granddaughter) stated she could not stay because, if she did, she would miss "special tickle time with Grandpa." Id. This statement caused Victim concern because Marshall had sexually abused Victim during Victim's childhood, but Victim never told anyone. Id. Upon hearing his niece's statement, Victim decided to finally disclose to both family and law enforcement authorities what Marshall had done years earlier. Id. Victim's disclosures led to the State charging Marshall with one count of sodomy and one count of sexual abuse against Victim. Id.

Marshall was tried by a jury in April of 2018. Id. During trial, the State presented eight witnesses under the authority of Article I, § 18(c), of the Missouri Constitution, who all testified to uncharged acts of sexual abuse that Marshall had committed against them years or even decades earlier, in most instances when the witnesses were minors. Id. at 158. Marshall also testified in his own defense, where he admitted engaging in some physical abuse of his children but denied all allegations of sexual abuse. Id.

The jury found Marshall guilty as charged, and the court sentenced him to concurrent terms of life imprisonment for sodomy and four years for sexual abuse. Id. We affirmed Marshall's convictions and sentences on direct appeal. Id. at 162.

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Thereafter, Marshall filed a pro se Rule 29.15 motion for post-conviction relief. Appointed counsel then filed an amended motion, alleging ineffective assistance of trial counsel for (1) failing to object pre-trial and at trial to limit the number of propensity witnesses; (2) failing to file a motion in limine and object to testimony about what Marshall's granddaughter said and object to such testimony; and (3) failing to file a motion in limine to prevent witnesses from testifying about what other people said about Marshall sexually assaulting them and failing to object to the testimony.

The motion court held an evidentiary hearing, wherein it received testimony from trial counsel and a copy of the underlying transcript, and it took judicial notice of the underlying case file. After the hearing, the motion court issued its findings of fact and conclusions of law overruling Marshall's amended motion. The motion court determined that, with respect to the propensity witnesses, trial counsel did not have the benefit of the Missouri Supreme Court's decision in State v. Williams, 548 S.W.3d 275 (Mo. banc 2018), outlining the effect of Article I, § 18(c), on the admissibility of propensity testimony. Nevertheless, the motion court determined that, had counsel objected, the objection would have excluded the testimony of four of the eight propensity witnesses; yet the motion court determined that Marshall was ultimately not prejudiced because the jury verdict was unlikely to have changed, even if the number of propensity witnesses was reduced from eight to four. With respect to Marshall's granddaughter's statement about "special tickle time," the motion court found that any objection would have been overruled; therefore, Marshall failed to prove deficient performance. And, as to hearsay testimony from witnesses about Marshall sexually abusing others, the motion court found

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that Marshall failed to establish prejudice because many of the witnesses were available at trial for cross-examination and, even if an objection had been made and sustained, it would not have changed the outcome of the trial. Marshall appeals.

Standard of Review

We review the denial of a Rule 29.15 post-conviction motion for clear error. Balbirnie v. State, 649 S.W.3d 345, 352 (Mo. App. W.D. 2022) (citing Rule 29.15(k)). We will not find clear error unless the motion court's findings of fact and conclusions of law leave us "with the definite and firm impression that a mistake has been made." Id. (quoting Propst v. State, 535 S.W.3d 733, 735 (Mo. banc 2017)). "Regardless of the motion court's findings and conclusions in denying the motion, we will affirm the motion court's decision if sustainable for any reason." Id. (quoting Morrison v. State, 619 S.W.3d 605, 609 (Mo. App. W.D. 2021)).

Analysis

Marshall raises three claims on appeal, all alleging ineffective assistance of counsel. To establish ineffective assistance of trial counsel, a movant must prove "that defense counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under the same or similar circumstances and that [the movant] was thereby prejudiced." Yuille v. State, 654 S.W.3d 416, 421 (Mo. App. W.D. 2022). If a movant fails to prove either deficient performance or resulting prejudice, the claim fails, and we need not consider the other prong. Id.

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I. Trial counsel was not ineffective for failing to object to the number of propensity witnesses.

In Point I, Marshall argues that trial counsel was ineffective for failing to object both pre-trial and at trial to the number of propensity witnesses admitted under Article I, § 18(c), of the Missouri Constitution. We disagree.

The adoption of Article I, § 18(c), was approved by Missouri voters in the 2014 general election, and it provides:

Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.

Mo. Const. art. I, § 18(c). "The enactment of Article I, Section 18(c) effectively created a new evidentiary standard for sex crimes involving minors." State v. Matson, 526 S.W.3d 156, 158 (Mo. App. W.D. 2017).

In his amended motion, Marshall argued that trial counsel should have objected to the number of propensity witnesses, suggesting that, at most, two would have been an acceptable number. But the amended motion did not argue that, as to any individual witness, the prejudicial effect of the testimony substantially outweighed the probative value; nor did the amended motion indicate which two of the eight witnesses presented at trial were admissible and which witnesses were not. Instead, Marshall's argument was that eight propensity witnesses were simply too many and, therefore, tipped the legal

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relevance balancing scale in favor of exclusion of six of the witnesses. But this argument ignores that, while § 18(c) contains a legal relevance balancing test, it contains no express limitation on the number of prior allegations the State may use to establish a defendant's propensity to engage in sex crimes involving minors. Furthermore, any exclusion under § 18(c) based on legal relevance would necessarily involve a comparison of the probative value of the allegation versus its prejudicial effect.

In arguing that counsel was ineffective, Marshall relies substantially on State v. Williams, 548 S.W.3d 275 (Mo. banc 2018), State v. Brown, 596 S.W.3d 193 (Mo. App. W.D. 2020), and State v. Minor, 648 S.W.3d 721 (Mo. banc 2022). But all of these cases were decided after Marshall's trial, and none of them hold that § 18(c) limits the number of incidents the State may use to establish a defendant's propensity to engage in sex crimes involving minors.

A. Counsel is not ineffective for failing to anticipate a shift in the law.

Marshall acknowledges that, at the time of his trial, existing case law indicated that a trial court's discretion over the admission of propensity evidence under Article I, § 18(c), was nearly unlimited. See, e.g., State v. Rucker, 512 S.W.3d 63, 69 (Mo. App. E.D. 2017) (noting that, "even if the evidence's probative value was 'substantially outweighed by the danger of unfair prejudice,' the trial court was not required to exclude the evidence"); State v. Thigpen, 548 S.W.3d 302, 315 (Mo. App. E.D. 2017) (noting that "exclusion is not required even if the probative value [of the evidence] was substantially outweighed by the prejudicial effect"). But Marshall argues that "challenging the admission of propensity evidence under [§] 18(c) was not a 'novel' objection" and,

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therefore, we may still find counsel's performance deficient because counsel could have anticipated the Missouri Supreme Court's decision in Willia...