United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
NOELLE C. COLLINS, Magistrate Judge.
This matter is before the Court is the petition by Don Perry Beard for writ of habeas corpus pursuant to 28 U.S.C. § 2254. After reviewing the case, the Court has determined that petitioner is not entitled to relief. As a result, the petition will be dismissed.
Petitioner was charged with child molestation in the first degree, attempted victim tampering, and attempted witness tampering. Resp't Ex. C at 10-12 (Legal File, Indictment). A jury found petitioner guilty on all three counts. Id. at 51-53 (Verdict). Before sentencing, the state realized that the witness tampering count was not supported by the evidence and it moved to dismiss that count. Resp't Ex. F at 3 (Per Curiam Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b)). The court entered a judgment of acquittal on that count. Id . And the court sentenced petitioner to consecutive sentences of seven years' imprisonment on the molestation count and five years' on the victim tampering count. Resp't Ex. C at 60-60 (Legal File, Sentence and J.).
The Missouri Court of Appeals set forth the relevant facts as follows:
[Petitioner] and his girlfriend (Girlfriend) shared a home. Occasionally, Girlfriend's nieces and other girls would spend the night in the home. On the night of November 1, 2003, six young girls spent the night at the home. The following morning, Girlfriend left for work between 5:00 a.m. and 6:00 a.m., leaving [petitioner] as the only adult in the home. Sometime after 6:00 a.m., B.S. a fifteen-yearold acquaintance of Girlfriend's nieces, awoke and observed [petitioner] standing over her ten-year-old sister, C.W. C.W. was sleeping, and [petitioner's] hands were in C.W.'s shorts C.W.'s shirt was partially removed. B.S. and [petitioner] made eye contact, and, shortly thereafter, B.S. began screaming. [Petitioner] begged B.S. not to tell anyone about what she had seen and said that he was "sick" and in need of a psychiatrist. Another witness, D.E., who was approximately fourteen years old, testified that she observed [petitioner] with one of his hands on or near C.W.'s exposed breast area shortly before B.S. started screaming. B.S. woke C.W. and the other girls and all the girls left the home to find a telephone. [Petitioner] followed the girls and told them, "I'll give you anything if you don't tell. I'll give you money, anything, just please don't tell." When the girls ignored [petitioner's] pleas, he said, "Well, I'm just gonna kill myself." The girls contacted B.S and C.W.'s mother, and the police were notified.
Resp't Ex. K at 2 (Per Curiam Mem. Supplementing Order Affirming J. Pursuant to Rule 84.16(b)).
On direct appeal, petitioner argued that the trial court erred in (1) denying his motion for judgment of acquittal at the close of evidence because there was insufficient evidence to show that he acted for the purpose "of arousing his own sexual desire" as required by the child molestation statute, (2) allowing evidence of witness tampering because such evidence was inadmissible in that he was ultimately acquitted of the charge, and (3) submitting a jury instruction that differed from the indictment, allowing for a finding of guilt in the disjunctive if the jury believed that petitioner touched the victim near her genitals or her breast. Resp't Ex. D at 12-14 (Appellant's Br.).
The Missouri Court of Appeals found that there was sufficient evidence to support the jury's finding that petitioner had touched the victim near her genitals or breast for the purpose of arousing his sexual desire. The jury heard testimony that he had put his hands on or near her breast and had put his hands into her pants. Resp't Ex. F at 3-4. And after having been observed, petitioner "begged B.S. to not tell anyone and even plead [sic] that he was sick' and in need of a psychiatrist." Id. at 4. The court found that this testimony supported a reasonable inference that he was guilty of the elements of the crime.
The appellate court rejected petitioner's contention that allowing evidence on the witness tampering charge prejudiced him because the same testimony applied to the victim tampering charge as well. Id. at 4-5. The court found no legal authority for petitioner's argument, and the court found no prejudice to petitioner. Id.
Finally, the appellate court denied petitioner's jury instruction claim. The court found that there was no discrepancy between the indictment and the jury instruction and that petitioner merely alleged a discrepancy between the probable cause statement and the instruction. Id. at 5. Therefore, the court affirmed the sentence and judgment. Id.
Petitioner filed a timely motion for postconviction relief under Missouri Court Rule 29.15. Resp't Ex. H at 3-12 (Legal File, Pet'r Mot.). In an amended motion, petitioner argued that his counsel was ineffective for failing to depose B.S. and D.E., for failing to file a motion to dismiss the witness tampering count, and for failing to call petitioner's girlfriend as a witness. Id. at 22-24 (Pet'r Am. Mot.). The motion court denied relief without holding an evidentiary hearing. Id. at 51-55 (Mot. Court's Findings of Fact, Conclusions of Law, and J.).
Petitioner raised the same three points on appeal. Resp't Ex. I at 13-17 (Appellant's Br.). The Missouri Court of Appeals applied the standard set forth in Strickland v. Washington , 466 U.S. 668 (1984), to petitioner's claims, and the court found that petitioner had failed to demonstrate prejudice. Resp't Ex. K at 4-12. The court issued its mandate on September 16, 2010. Resp't Ex. L (Mandate).
Petitioner timely filed the instant petition for writ of habeas corpus. He raises six grounds for relief.
Grounds for Relief
1. The trial court erred in denying his motion for judgment of acquittal at the close of evidence because there was insufficient evidence to show that he acted for the purpose of arousing or gratifying his sexual desire as required by Mo. Rev. Stat. § 566.010(3) (2000).
2. The trial court erred in allowing evidence of witness tampering because such evidence was inadmissible in that he was ultimately acquitted of the charge.
3. The trial court erred in submitting a jury instruction that differed from the indictment, allowing for a finding of guilt in the disjunctive if the jury believed that petitioner ...