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Strosnider v. State

Court of Appeals of Missouri, Southern District, First Division

December 13, 2016

DOUGLAS LEE STROSNIDER, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY Honorable Kelly W. Parker.

         AFFIRMED.

          OPINION

          DON E. BURRELL, J.

         Douglas Lee Strosnider ("Movant") appeals the denial, after an evidentiary hearing, of his motion to set aside his conviction and 25-year sentence for first-degree statutory sodomy.[1] See Rule 29.15[2] and section 566.062, RSMo 2000.

         In two points, Movant claims the motion court clearly erred because: (1) a juror "intentionally failed to disclose during voir dire that he knew [Movant's] family and prejudice is presumed from such intentional non-disclosure"; and (2) Movant's defense attorney ("trial counsel") was ineffective in failing to "clarify" to the jury during the sentencing phase[3] of Movant's trial that Movant's "related offenses . . . were not prior convictions, but only untried pending charges[.]" Movant claims he demonstrated that he was prejudiced by this failure to "clarify" because the jury later inquired "about prior convictions or pending charges" referenced by the prosecutor, and it is reasonably likely "that the jury would not have imposed a twenty-five year sentence had they known that [Movant] had no prior convictions[.]"

         Because Movant's first point is not cognizable in a claim for post-conviction relief, and Movant fails to demonstrate the prejudice necessary to support his second point, we affirm.

         Applicable Principles of Review and Governing Law

         We will reverse a motion court's denial of post-conviction relief only if "its findings of fact or its conclusions of law are clearly erroneous." Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009); see also Rule 29.15(k). To prevail on a claim of ineffective assistance of counsel, a movant must prove two things: (1) counsel did not exercise the customary skill and diligence that a reasonably competent attorney would have exercised under the same or similar circumstances; and (2) counsel's failure to exercise such skill and diligence prejudiced the movant. Strickland v. Washington, 466 U.S. 668, 687, 689 (1984); Taylor v. State, 382 S.W.3d 78, 80-81 (Mo. banc 2012). If proof of either is lacking, the claim fails. Taylor, 382 S.W.3d at 81. "To establish prejudice for an alleged error during the sentencing phase of trial, a movant must show that but for counsel's deficient performance, there is a reasonable probability that he would have received a lesser sentence." Washington v. State, 415 S.W.3d 789, 795 (Mo. App. E.D. 2013).

         Evidentiary and Procedural Background

         Movant was charged with one count of first-degree statutory sodomy of G.S. ("Victim"), a child under the age of 14, and he was tried by a jury in August 2013.

         Jury Selection

         When the venire panel was first brought into the courtroom, the trial court read a preliminary instruction, "BEFORE VOIR DIRE[, ]" that instructed the potential jurors that "[t]he charge of any offense is not evidence, and it creates no inference that any offense was committed or that the defendant is guilty of an offense." During voir dire, trial counsel introduced himself and Movant to the panel. The prosecutor also asked the panel if anyone knew Movant. Some members of the panel indicated that they knew Movant, but venireperson Roger Protte ("Juror Protte") did not respond. One of Movant's grandfathers, Jim (who referred to himself as "Jimmy") Strosnider ("Movant's grandfather"), was also identified as a potential witness, and when the panel was asked whether anyone knew Movant's grandfather, Juror Protte did not respond. Juror Protte was seated as a member of the jury.

         Guilt Phase

         Victim was the State's only witness during the guilt phase of Movant's trial, and she provided the following testimony. She was born in 1994, and Movant is her cousin. One day, when she was somewhere between the ages of four and six, Movant gave her a "signal" to meet him in a back bedroom of her grandparents' house. Once there, Movant laid her on the bed and touched her vagina with his tongue. She did not tell anyone about this event when it happened, but she told her grandfather about it in 2010, after he asked her about an incident involving another girl.

         Trial counsel called nine witnesses on Movant's behalf, including Movant's grandfather. Movant did not testify during the guilt phase. One of the instructions given to the jury at the conclusion of this phase again instructed that "[t]he charge of any offense is not evidence, and it creates no inference that any offense was committed or that the defendant is guilty of an offense." After deliberation, the jury returned a guilty verdict.

         Penalty ...


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