Smith v. State
| Decision Date | 20 March 2015 |
| Docket Number | No. SD 33174,SD 33174 |
| Citation | 467 S.W.3d 303 |
| Parties | Eddie Wayne Smith, Movant-Appellant, v. State of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Attorney for Appellant—Scott Thompson, St. Louis, MO
Attorney for Respondent—Adam S. Rowley, Jefferson City, MO
Eddie Wayne Smith (“Movant”) appeals from the motion court's denial of his Rule 29.15 motion for post-conviction relief.1 Movant's post-conviction motion challenged his convictions for enticement of a child and for attempted second-degree statutory rape. See §§ 566.034, 566.151.2 Movant raises three claims of ineffective assistance of counsel. Movant's claims are without merit, and the motion court's judgment is affirmed.
In November 2008, Movant sent inappropriate text messages to a 12–year–old girl. The girl's parents discovered the messages, contacted the authorities, and ultimately turned the girl's phone over to Officer Jeremy Yates (“Officer Yates”) of the Kennett Police Department.
Officer Yates contacted Detective Tim Trowbridge (“Detective Trowbridge”) of the Kennett Police Department to assist with the investigation. Detective Trowbridge, posing as the girl, engaged in a text message conversation with Movant. During that conversation Movant indicated he wanted to meet and have sex even though the text conversation made it plain that the “girl” was only 14 years old.3
A meeting was arranged, and Movant was arrested when the officers located him near the arranged meeting place. The officers found the cell phone used to send the text messages in Movant's vehicle. Movant subsequently made a number of inculpatory statements.
Movant was charged with enticement of a child and attempted first-degree statutory rape. Trial counsel filed a motion to suppress the cell phone found in Movant's van and the statements Movant made after his arrest, both of which the trial court denied. Movant was tried by a jury, and the jury found him guilty on both counts. On appeal, this Court reversed Movant's conviction for attempted first-degree statutory rape and entered a conviction for attempted second-degree statutory rape because all the evidence showed Movant believed the “girl” was 14 years old. Smith, 330 S.W.3d at 556. Movant's convictions were otherwise affirmed. Id.
After his re-sentencing, Movant timely sought post-conviction relief. In his amended motion, Movant raised four claims for relief: (1) that trial counsel provided ineffective assistance of counsel for failing to raise a double jeopardy claim; (2) that appellate counsel was ineffective for failing to raise a claim in Movant's direct appeal arguing that the trial court erred in denying the motion to suppress the cell phone; (3) that appellate counsel was ineffective for failing to raise a claim in Movant's direct appeal arguing that the trial court erred in denying the motion to suppress the statements Movant made after his arrest; and (4) that trial counsel was ineffective for encouraging Movant to waive his right to a penalty phase trial after the remand in his direct appeal. The trial court entered its judgment denying all Movant's claims. Movant appeals, arguing error in the motion court's rejection of the first three claims.
Each of Movant's claims on appeal involves alleged ineffective assistance of counsel, so the following principles govern our review of his claims. “There are two components to a claim of ineffective assistance of counsel.” Tilley v. State, 202 S.W.3d 726, 731 (Mo App. S.D.2006). “First, a movant must show that ‘counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney[.]’ ” Id. (quoting State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) ). “Second, ... the movant must demonstrate that he or she was prejudiced by counsel's performance.” Id. at 732. “To demonstrate prejudice, a movant must show that, but for counsel's poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different.” Id. Furthermore, “[o]ur review of a claim of ineffective assistance of appellate counsel is governed by the same standard as that employed regarding claims concerning trial counsel[.]” Williams v. State, 342 S.W.3d 433, 435 (Mo.App.E.D.2011). Finally, a hearing is not required in a post-conviction case if “the motion and the files and records of the case conclusively show that the movant is entitled to no relief[.]”4 Rule 29.15(h). And, appellate review of the motion court's action in a post-conviction case is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 29.15(k).
In his first point, Movant claims the motion court clearly erred in denying his claim that trial counsel was ineffective for failing to raise a double jeopardy claim. This claim is without merit because there was no double jeopardy violation. See Tilley, 202 S.W.3d at 738 ().
“The federal double jeopardy clause provides that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ ” State v. Hardin, 429 S.W.3d 417, 421 (Mo. banc 2014) .). “It provides two basic protections: it protects defendants from successive prosecutions for the same offense after acquittal or conviction and it protects defendants against multiple punishments for the same offense.”Id. Here, Movant argues Movant has been subjected to multiple punishments for the same offense.
When determining whether a defendant's right to be free from multiple punishments has been violated, the court's focus is “limited to determining whether cumulative punishments were intended by the legislature.” Id. (quoting State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992) ). “The legislative intent regarding such cumulative sentences is first determined by examining the relevant statutes.” Tilley, 202 S.W.3d at 736. “The elements of each offense are gleaned from statutory or common law definitions and, then, simply compared.” Id. at 736–37 (quoting State v. McLemore, 782 S.W.2d 127, 128–29 (Mo.App.E.D.1989) ). “[I]f each of the two offenses contains an element that the other lacks, the defendant may be convicted of both offenses without violating his double jeopardy rights.” Id. at 736.
The crime of enticement of a child is proscribed by Section 566.151. That section provides as follows:
A person at least twenty-one years of age or older commits the crime of enticement of a child if that person persuades, solicits, coaxes, entices, or lures whether by words, actions or through communication via the Internet or any electronic communication, any person who is less than fifteen years of age for the purpose of engaging in sexual conduct.
§ 566.151.1. Thus, the elements of enticement of a child are (1) that the defendant is over 21 years old; (2) that the victim is less than 15 years old; (3) that there is an action or communication that “persuades, solicits, coaxes, entices, or lures” the victim; and (4) that the action or communication is made “for the purpose of engaging in sexual conduct.” Id.
The crime of attempted second degree statutory rape is proscribed by Section 566.034 and Section 564.011. Section 566.034 provides that:
[a] person commits the crime of statutory rape in the second degree if being twenty-one years of age or older, he has sexual intercourse with another person who is less than seventeen years of age.
§ 566.034.1. Then, the attempt statute states in Section 564.011.1:
A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A “substantial step” is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.
§ 564.011.1. Thus, the elements of the crime of attempted second-degree statutory rape are (1) that the defendant is over 21 years of age; (2) that the victim is under 17 years of age; and (3) that the defendant committed a substantial step toward sexual intercourse.
Each of these crimes has an element that is not part of the other offense. Enticement of a child requires an act or communication that “persuades, solicits, coaxes, entices, or lures” the child to engage in sexual conduct. § 566.151.1. Attempted second-degree statutory rape can be committed without such words or conduct. See § 566.034.
Attempted second-degree statutory rape requires proof of an act that is strongly corroborative of the defendant's intent to engage in sexual intercourse with the victim. §§ 564.011; 566.034. Enticement of a child can be committed without such conduct; in fact, electronic communications alone can be sufficient to support a conviction under that statute. See State v. A lm aguer, 347 S.W.3d 636, 640 (Mo.App.E.D.2011) ().
As each crime has an element not present in the other, no double jeopardy violation occurred in this case. An objection or motion making such an argument is without merit. Movant's counsel was not ineffective for failing to make such objections or arguments. See Tilley, 202 S.W.3d at 738 (). The motion court did not clearly err in denying this claim without an evidentiary hearing.
Movant's primary argument rests on the proposition that his text messages were a single act. This argument proceeds in two parts. First, Movant quotes the language of the charging documents and the instructions to the jury at length. Then, he discusses State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970), and State v. Parsons, 513 S.W.2d 430 ...
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