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Harrison v. State

Court of Appeals of Missouri, Western District, First Division

August 15, 2017

DAVID HARRISON, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Buchanan County, Missouri The Honorable Randall R. Jackson, Judge

          Before James E. Welsh, Presiding Judge, Lisa White Hardwick, Judge and Gary D. Witt, Judge.

          Gary D. Witt, Judge.

         David Harrison ("Harrison") appeals the motion court's denial of his Rule 29.15 motion for post-conviction relief by the Circuit Court of Buchanan County. Harrison was convicted after a jury trial of one count of first-degree statutory sodomy ("Underlying Criminal Case"). On direct appeal, this Court affirmed his conviction and sentence. State v. Harrison, 453 S.W.3d 812 (Mo. App. W.D. 2015). In his Rule 29.15 motion, as relevant to this appeal, Harrison claims his trial counsel was ineffective for failing (1) to admit his written police statement ("Statement") into evidence, (2) to call certain witnesses during the guilt phase of his trial, and (3) to investigate, prepare, and present testimony from certain witnesses at the penalty phase of the trial. Following an evidentiary hearing, the trial court denied Harrison's motion and he now appeals. We affirm.

         Factual Background[1]

         Harrison was convicted following a jury trial of one count of first-degree statutory sodomy. During the Underlying Criminal Case, Harrison was charged initially with seven counts of various sexual offenses[2] occurring over three different charged time periods all involving one victim, his step-daughter ("KM"). The trial court granted Harrison's motion for judgment of acquittal on Count VII and the remaining six charges were submitted to the jury. The jury acquitted Harrison of Counts I-V, but convicted him on Count VI, first-degree statutory sodomy. The trial was bifurcated and the jury recommended a sentence of 25-years' imprisonment on Count VI, which the judge adopted at sentencing.

         During the trial, KM testified that Harrison first began sexually abusing her when the family[3] was living in Cameron, Missouri, while she was in first grade[4]. Later the family moved to St. Joseph, Missouri, and they lived with Mother's parents and KM repeated the second grade. She testified that while living in St. Joseph, Missouri, Harrison had vaginal, anal, and oral intercourse with her on numerous occasions. In between second grade and third grade, the family moved to Bryce Road, where KM lived with Mother, Harrison, and her brother. She testified that the sexual abuse continued at both houses in St Joseph.

         The state also introduced testimony from Mother, Linda Kerr ("Nurse Kerr"), Detective Trenny Wilson ("Detective Wilson"), and Linda Fisher. Mother testified, inter alia, that KM disclosed sexual abuse allegations to her the day after KM found out Harrison was not her biological father. Mother confronted Harrison, who denied the allegations, and then she contacted the authorities. Nurse Kerr, a Pediatric Nurse Practitioner, conducted a SAFE[5] exam on KM. There were no abnormal findings with the physical exam but Nurse Kerr testified that vaginal and anal tearing would normally heal within one or two days of trauma. KM's hymen was intact. Detective Wilson conducted a forensic interview with KM, where KM detailed the abuse. During the investigation Harrison voluntarily met with Detective Wilson and gave a Statement in which he denied any abuse. Fisher is KM's counselor and testified as to what KM had disclosed to her about the sexual abuse allegations.

         Harrison testified in his defense that he never sexually touched or abused KM. During cross-examination, the prosecution elicited testimony from Harrison that his trial counsel had been present during the police interview and that Harrison had reviewed the Statement prior to testifying.

         The jury found Harrison not guilty of Counts I-V and guilty on Count VI. During the sentencing phase of the trial, the State presented testimony from Mother and Fisher regarding the impact the abuse has had on KM. The defense presented no evidence at the sentencing phase of the trial. The court sentenced Harrison to the recommended sentence of 25-years' imprisonment. His conviction and sentence were affirmed on direct appeal. State v. Harrison, 453 S.W.3d 812 (Mo. App. W.D. 2015).

         Harrison timely filed a pro se Rule 29.15 motion for post-conviction relief on April 24, 2015. The motion court appointed counsel who timely filed an amended post-conviction motion ("Amended Motion"). The motion court held an evidentiary hearing on the Amended Motion on February 17, 2016. At the evidentiary hearing, Harrison introduced into evidence his Statement and portions of the criminal transcript that were not filed with this court on the direct appeal. Additionally, trial counsel, his grandmother ("Grandmother"), and his aunt ("Aunt") testified at the evidentiary hearing. The motion court found that trial counsel was experienced and had provided Harrison with an "excellent defense" that resulted in Harrison's acquittal on five of the six counts charged. The motion court also found Harrison failed to show that his conviction was due to failure of trial counsel rather than simply Harrison's guilt of the offense. This appeal followed.

         Standard of Review

         This Court will affirm the motion court's judgment unless its findings and conclusions are clearly erroneous. Rule 29.15(k). "Findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made." Eichelberger v. State, 134 S.W.3d 790, 792 (Mo. App. W.D. 2004) (quoting Adams v. State, 951 S.W.2d 722, 724 (Mo. App. W.D. 1997)). The motion court's findings are presumed correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). The movant bears the burden of proving the asserted "claims for relief by a preponderance of the evidence." Brown v. State, 450 S.W.3d 450, 452 (Mo. App. W.D. 2014). "This [C]ourt will not supply findings of fact and conclusions of law by implication from the court's ruling." White v. State, 57 S.W.3d 341, 343 (Mo. App. E.D. 2001).

         Analysis

         Harrison raises six points on appeal. As there is substantial overlap between points one and two, three and four, and five and six, ...


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