McAllister v. State
| Decision Date | 15 March 2022 |
| Docket Number | ED 109569 |
| Citation | 643 S.W.3d 124 |
| Parties | Pervis MCALLISTER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
For Appellant: Shelby M. Cowley, 10024 Office Center Ave., Ste. 202, St. Louis, MO 63128.
For Respondent: Richard A. Starnes, P.O. Box 899, Jefferson City, MO 65102.
Pervis McAllister ("McAllister") appeals from the motion court's judgment denying his Rule 29.151 motion for post-conviction relief following jury trial convictions for first-degree child molestation, first-degree statutory sodomy, and first-degree statutory rape. McAllister raises five points on appeal. Points One, Two, and Three contend appellate counsel failed to challenge the sufficiency of the evidence for statutory sodomy. Points Four and Five assert trial counsel and appellate counsel failed to raise instructional error subjecting McAllister to double jeopardy on the charges of child molestation and statutory rape. The record supports McAllister's claim that the State failed to present sufficient evidence of hand-to-genital conduct to sustain McAllister's conviction on first-degree statutory sodomy on Count IV and that appellate counsel did not raise the issue of sufficiency on appeal. The motion court clearly erred in determining without an evidentiary hearing that McAllister failed to demonstrate appellate counsel was ineffective for not raising that issue. We therefore grant Point One. Because the State presented trial testimony that McAllister's sexual abuse of C.S. continued until 2002, the record contains sufficient evidence showing McAllister committed statutory sodomy against C.S. within the alleged timeframe. The motion court did not err in finding appellate counsel was not ineffective for failing to challenge the sufficiency of the evidence on Counts IX and X, and we deny Points Two and Three. Because the charges of first-degree child molestation and first-degree statutory rape each contain an element the other does not, neither trial counsel nor appellate counsel were ineffective for failing to raise a meritless claim of double jeopardy. The motion court did not err in denying McAllister's amended motion on those grounds, and we deny Points Four and Five. Accordingly, we affirm the motion court's judgment on Points Two, Three, Four, and Five, and we reverse on Point One. We reverse and remand for an evidentiary hearing on McAllister's conviction and sentence as to Count IV only. The remainder of the motion court's judgment is affirmed.
The criminal convictions in this case stem from sexual abuse committed against three victims. This appeal concerns the evidence from two of the victims, J.W. and C.S., adult sisters who testified in a jury trial that McAllister sexually assaulted them when they were children under the age of twelve living in the same house with McAllister from 1999 to 2002. In the light most favorable to conviction, the following facts relevant to appeal were adduced at trial in 2015.
McAllister moved into the house when he was dating the mother of J.W. and C.S. J.W. was nine years old, and C.S. was seven years old. On the day they met, McAllister sexually assaulted J.W. and continued doing so regularly until he moved out in 2002. McAllister also sexually assaulted C.S. during the same timeframe.
J.W. was twenty-four years old at the time of trial and testified that McAllister began sexually abusing her in 1999 when he moved into the house when she was nine years old. J.W. also testified that C.S. was seven years old when McAllister moved in. J.W. testified that McAllister repeatedly sexually abused her in the house, the car, and another house. J.W. described how McAllister would hold his penis against her vagina for a set amount of time, which he would count aloud, sometimes during which he would penetrate her labia or vagina. J.W. testified that McAllister would give her money in exchange for sex. The State asked J.W. whether "[a]t any point did he use his hand to touch you?" J.W. answered, J.W. also testified that McAllister ejaculated into his hand "a couple times." J.W. testified that McAllister continued sexually abusing her until he moved out of the house in 2002.
C.S. was twenty-two years old at the time of trial and testified that McAllister began sexually assaulting her when she was seven years old and that he continued doing so until he moved out of the house. C.S. testified that McAllister repeatedly touched her genitals, specifically rubbing her vagina with his hand and putting her hand down his pants to feel his erect penis, stating these actions occurred "often" and "way more than once."
McAllister testified in his own defense. He denied having any sexual contact with J.W. or C.S. He testified he had a good relationship with them and the other children who lived in the house until he moved out. McAllister testified he moved out of the house on New Year's Eve in 2000.
The jury instruction for Count IV instructed the jury to find McAllister guilty of first-degree statutory sodomy if he knowingly touched the vagina of J.W. with his hand. On Counts IX and X the jury was instructed to find McAllister guilty of first-degree statutory sodomy if, between August 28, 2000 and January 1, 2002, he touched the vagina of C.S. with his hand and made C.S. touch his penis with her hand, respectively. The trial court also instructed the jury on Count VIII for first-degree child molestation for genital-to-genital contact of J.W. and three counts of statutory rape of J.W. in Counts V, VI, and VII.
The jury found McAllister guilty of three counts of first-degree child molestation (Counts II, III, and VIII), three counts of first-degree statutory sodomy (Counts IV, IX, and X), and one count of first-degree statutory rape (Count V). The trial court dismissed the charge of sexual misconduct at the close of the State's evidence (Count I), and the jury acquitted McAllister of two counts of first-degree statutory rape (Counts VI and VII). The trial court sentenced McAllister to twenty-five years on each count of first-degree statutory sodomy and the count of statutory rape, fifteen years on the counts for child molestation against the third victim, and seven years on the count of child molestation against J.W., with all sentences to run concurrently.
This Court affirmed McAllister's convictions in State v. McAllister, 491 S.W.3d 681 (Mo. App. E.D. 2016). McAllister then sought post-conviction relief.2 In his Rule 29.15 amended motion, McAllister raised numerous grounds for ineffective assistance of trial counsel and appellate counsel, including claims challenging sufficiency of the evidence as well as double jeopardy. On remand, the motion court issued its second amended judgment denying McAllister's motion for post-conviction relief without an evidentiary hearing. This appeal follows.
McAllister raises five points on appeal. Point One argues the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing because appellate counsel was ineffective for failing to challenge the sufficiency of the evidence for first-degree sodomy on Count IV. More specifically, McAllister maintains there was insufficient evidence to support a finding either that McAllister touched J.W.’s genitals with his hand or that he did so during the time period charged by the State. Point Two contends appellate counsel was ineffective for failing to assert that insufficient evidence supported finding on Count IX that McAllister touched C.S.’s genitals with his hand during the time period charged by the State. Point Three maintains appellate counsel was ineffective for failing to assert that insufficient evidence supported a finding on Count X that McAllister touched C.S.’s hand with his genitals during the relevant time period. Point Four claims the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief because trial counsel was ineffective for failing to object to the verdict director for Count VIII, first-degree child molestation, because the verdict director improperly subjected McAllister to double jeopardy for the same evidence and conduct as for first-degree statutory rape in Counts V and VI, which also necessarily involved genital-to-genital contact as part of sexual intercourse. Point Five posits that appellate counsel correspondingly was ineffective for failing to raise on appeal that the verdict director for Count VIII subjected McAllister to double jeopardy.
Our review of a motion court's denial of post-conviction relief is limited to determining whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019). "A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Shockley, 579 S.W.3d at 892 (internal quotation omitted). We presume the motion court's findings are correct and defer to the motion court's determinations as to the credibility of witnesses. Id. (internal citations omitted).
A movant is not guaranteed an evidentiary hearing. Rule 29.15(h). A motion court is not required to conduct an evidentiary hearing if "the motion and the files and records of the case conclusively show that the movant is entitled to no relief[.]" Smith v. State, 467 S.W.3d 303, 306–07 (Mo. App. S.D. 2015) (quoting Rule 29.15(h)).
McAllister's Rule 29.15 amended motion raises claims of ineffective assistance of both trial and appellate counsel. To prevail on a claim for ineffective assistance of counsel, a movant must show by a preponderance of the...
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